If someone leaves property to 2 people as joint tenants with the right of survivorship in a Will but but grantees pass away, what happens to the property?

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If someone leaves property to 2 people as joint tenants with the right of survivorship in a Will but but grantees pass away, what happens to the property?

Does it go to the surviving grantee and the deceased grantee’s heirs?

Asked on March 7, 2013 under Estate Planning, New York

Answers:

Catherine Blackburn / Blackburn Law Firm

Answered 8 years ago | Contributor

This is tricky and I cannot answer precisely without seeing the documents.  The will may state what happens if both grantees pass before the testator (the person who wrote the will).  In that case, follow the language of the will to find out who receives the property.

If both grantees died before the testator and the will does not provide for this, then this gift probably fails.  If the gift fails, the property passes according to the residuary clause of the will ("all the rest, residue, and remainder of my estate I give to . . . ").  Your state law may have an unusual provision, but this is probably the result.

If neither grantee ever held title to the property (i.e., neither one was ever on a deed), then the will controls what happens to the property.  If one or both of them held title (were on the deed), then the deed controls what happens to the property. 

Let's say both grantees received the property and were joint tenants on the deed with the right of survivorship.  When one grantee died, the other received ALL of the property (not half of it, all of it).  When that grantee died, the property goes to that grantee's heirs.

I hope this helps.  It is a bit like a law school property exam without all the facts.


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