Often we see homes and other real estate deeds contain the words “with right of survivorship.” For many good reasons, you may want to remove this designation. One obvious reason may be that you do not want your ownership interest to extinguish, or end, when you die.
To ensure that your partial ownership will be owned by your heirs after you pass, there can be no “rights of survivorship” with the other partial owners. The Sirvent Law Firm often assists clients to remove this designation, which is allowed by Arizona Revised Statutes, Title 33-431 and our common law.
The specific documents needed to terminate the right of survivorship (ROS) are: an affidavit signed by the one tenant who wants the ROS to end under oath that states his or her intent to terminate the survivorship right, a description of the deed which created the rights of survivorship (including the date the instrument was recorded and the county recorder’s book and page or instrument reference number) and the legal description of the property.
This type of affidavit, once recorded, will terminate the ROS as to the one person who signed and filed the affidavit. If there were only two owners, two “tenants”, then the ROS are terminated and each person owns the partial interest as stated in the prior deed or pursuant to their written agreement or contributions. Review A.R.S. Section 33-431.E.
A married person may use the same procedure for any property titled as community property with right of survivorship. This would end the ROS, but would preserve the community property nature of the real estate.
Ending the right of survivorship has the effect of allowing your heirs to inherit your partial interest in the property. For example, if brother Bob and brother Joe purchased a rental property 50/50 and took title with rights of survivorship, what would happen if brother Bob died? The answer, brother Joe would be the sole owner. Brother Bob’s wife or kids would own nothing and have no claim to any part of the rental house. Brother Bob could use the procedure above to terminate the ROS. That way when he dies, his wife and children would inherit his 50% of the property – it would not vest in the surviving owner of the property, his brother Joe, who would then continue to own only 50%.