Wills, Trusts, and Rights of Survivorship: What Happens When a Parent Dies and a Child Is on the Deed?
What happens when one parent dies and a child is listed on the deed with a right of survivorship? In most cases, the home legally belongs to the surviving owner regardless of what the will says. For some families, a right of survivorship is a powerful tool used to protect homes, avoid probate, and preserve generational wealth. For others, it becomes the source of inheritance disputes, unintended disinheritance, and family conflict. So, if you're considering adding your child to the deed through a right of survivorship, or you're a child trying to educate your parents on why adding one of their children to the deed in this manner could be beneficial, then continue reading.
Joint tenancy with right of survivorship (JTWROS) is an ownership arrangement in which the surviving owner automatically inherits the deceased owner's share of the property. In a simple example involving two owners, each party generally holds an equal interest in the property. One important thing to understand is that an owner cannot simply leave their share to someone else through a will or transfer it into a trust at death while maintaining the joint tenancy structure. Upon the death of one owner, their interest automatically passes to the surviving joint tenant by operation of law.
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Because of this, when someone decides to create a JTWROS arrangement, it's important to remember that the survivorship feature controls what happens to the property at death. If the owners later wish to change that arrangement, the joint tenancy generally must be severed and the ownership structure changed.
This method bypasses probate because, once a home is titled with a right of survivorship, the deceased owner's interest does not become part of the probate estate. Other assets, however, such as bank accounts, investment accounts, or additional real estate that are not subject to survivorship rights or beneficiary designations, may still pass through the estate, where heirs and distributees can inherit and divide those assets according to the will or applicable law.
Wealthy families use this primarily for the purpose of avoiding probate because it can be costly, take months or even years, and expose family affairs to the public. Wills can also be contested, and if a person dies intestate but owns assets, disputes can arise among surviving family members. One child may wish to sell the property while another wants to keep it. They may decide to serve as co-administrators of the estate, but while this is a common practice, it is not always as simple as it sounds.
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Children can get along for years, right up until assets come into question and must be divided among family members. Most wealthy people do not want their children quarreling over finances, not while they are alive and certainly not after they are gone. Some wealthy individuals who draft wills will often appoint close friends or attorneys as executors to serve as disinterested parties responsible for distributing assets, closing the estate, or transferring any remaining assets into an irrevocable trust.
Real estate is one of the primary assets used to create and preserve generational wealth, and having a surviving child or spouse means that this asset can be retained immediately. Now, let's say there is a parent who is married. This is where things can become a bit more complicated, as the legal mechanism designed to protect family wealth can also become the source of some of the most painful inheritance disputes. While these laws vary from state to state, it is still a general rule of thumb that these types of deeds and ownership arrangements can be difficult to challenge, though not impossible.
Spouses who are not listed on the deed, particularly in situations where ownership is held solely by a parent and child, may argue that the transfer improperly bypassed marital property laws. They may claim that the property is marital or community property, assert entitlement to a statutory share of the estate, or allege that the deed was created through undue influence. These disputes can lead to litigation among surviving spouses, stepchildren, siblings, and members of blended families.
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For example, in New York there is something called an "elective share." Even if a spouse is disinherited in a will, a surviving spouse may still have the right to claim a portion of the deceased spouse's estate under New York law. That means a child generally cannot completely cut out a spouse without careful legal planning, especially if assets were transferred in ways that a court views as attempts to evade spousal rights. This is one reason why survivorship deeds involving children can sometimes be contested.
If you or your family are considering a JTWROS, also consider having a trust, a power of attorney, and a healthcare proxy drafted and executed by all parties. Documents should clearly state, "I intentionally want my son or daughter to inherit this home because it was inherited from my parents before my marriage." That type of documentation can become important later if someone alleges coercion, confusion, undue influence, or diminished capacity.
The goal is simple: always be clear and intentional when it comes to estate planning, and most importantly, avoid DIY deed transfers and homemade estate-planning documents. Many inheritance disputes are not caused by greed, but by informal estate planning. Families often try to avoid probate through quick deed transfers without realizing that they may be creating future legal battles.
Image Credit: Vinnie Zuffante
Ashley Morton writes on real estate, focusing on high-value markets, investment strategy, and the evolving definition of luxury living. Her work examines how property, design, and location intersect to shape both personal lifestyle and long-term asset growth.
