© 2006 Russell W. Hall
Survivorship Ownership Agreements
Imperfect Will Substitutes for Motor Vehicles, Boats, and Mobile Homes
The State of
For small estates, survivorship ownership agreements are a great improvement over affidavits of heirship, a last resort for decedents without Wills and survivors who cannot afford probate. Whenever an affidavit of heirship is better than nothing, a survivorship ownership agreement is much better than nothing.
And . sometimes not. The state forms have undisclosed requirements and limitations, their underlying rules change without warning, and they vest joint ownership immediately, preventing an owner from changing survivorship and creating finance, insurance, and tax issues that would have been avoided with a Will or even the awkward heirship affidavit. As a rule of thumb, anyone who can afford a Will can afford to do better than a survivorship ownership agreement.
The Departments of Transportation (DoT), Parks and Wildlife, and Housing and Community Affairs, respectively, split responsibility for titling motor vehicles, boats, and mobile homes. Each has unique forms and rules, with many similarities but a few important differences.
Clearing title on death
On an owner's death, new title to motor vehicles, boats, and mobile homes requires estate administration, an affidavit of heirship, or a survivorship ownership agreement.
Estate administration is the most cumbersome. A personal representatives files the Will, if any, and the probate court signs its order either admitting the Will or declaring heirship. The clerk issues "letters" before the personal representative can request new title. These procedures are commonly known as probate.
Affidavits of heirship are signed by the decedent's heirs. All must join in swearing no administration is necessary and in naming the new owner. If even a single heir is unable or unwilling to sign, or if an administration is necessary, for example, decedent left debts (think medical bills or funeral expenses) or other assets require administration (stock certificates cannot retitle without "letters"), the affidavit is unavailable. Heirship affidavits are a last resort typically used when the owner made no estate plans. Only heirs sign, so the owner has no control over the new title.
Survivorship ownership agreements (SOAs) are more robust. Two or more people sign an agreement to own the asset jointly. The agreement can be registered and new title issued then, later, or on the death of an owner. A death certificate is enough to remove the decedent's name from the title, regardless whether the heirs agree or an administration is necessary. DoT Form VTR-122 is for motor vehicles, Housing and Community Affairs MHD Form 1018 for mobile homes, and Parks and Wildlife Form PWD 790 for boats and motors.
History and authority
DoT Form VTR-122 is the model for the other two.
1999 amendments let any two or more persons, not just husband and wife, use SOAs, thus extending them to domestic partners, fishing buddies, business associates, etc. A notary requirement was added for joint owners other than husband and wife, so Form VTR-122 was created, since there is no room for a notary on the certificate of title. The original husband and wife SOA remains on the certificate of title to this day, misleading joint owners who qualify only under Form VTR-122.
The 1999 amendments also authorized SOAs for mobile homes. That language is now found in the Occupations Code.
As a courtesy, Parks and Wildlife provides an SOA (Form PWD 790), but there is no authority for it, so it could be revoked at any time.
Qualified joint owners
Perhaps to curb unfair lending practices, both the Transportation and Occupations Codes prohibit a seller from entering an SOA with a buyer unless a close relative of all joint owners. Qualified relatives include a child, grandchild, parent, grandparent, brother, or sister, but exclude the spouse. Thus, husband and wife are disqualified from using an SOA on a sale from one to another.
Both Codes define "person" to include business and other organizations, suggesting a trust or business entity could take ownership. However, in 2000, the DoT changed its rules to limit SOAs to natural persons acting in an individual capacity, thus precluding trusts or business entities.
The DoT's stated rationale was to conform the rules to the Legislature's intent. Bill Analysis reports the 1999 amendments were intended merely to extend SOAs from husband and wife to widow and children. If so, that justifies further restriction of SOAs to preclude domestic partners, fishing buddies, business associates, and even many close relatives.
Joint ownership considerations
SOAs vest joint ownership immediately upon signing, not just on death. Where the signers acquired the asset jointly, e.g., husband and wife bought, financed, and insured a boat together, an SOA has few bad results. However, when that same husband makes his fishing buddies joint surviving owners, a gift or sale takes place. To avoid foreclosure under a lender's "due on sale" clause, loans must be paid off. To avoid a loss of insurance coverage, ownership must be updated. If joint ownership was a gift, a gift tax return must be considered if the SOA transfers more than the annual exclusion amount ($12,000 in 2006). Finally, a management agreement is in order, allocating expenses and resolving disputes, since the boat is now owned by a committee.
Traps for the unwary
The DoT distributes two SOA forms: one on every vehicle certificate of title, and the other on Form VTR-122. Only married owners are eligible to use the certificate SOA, and even then only when granting survivorship to each other. Any other use of the certificate SOA is void.
None of the forms caution owners against joint ownership with trusts, business organizations, or, on sale, all but the closest blood relatives.
SOAs cannot be revoked without all joint owners' consent.
Because SOAs need not registered before death, an owner can easily use the wrong form, name the wrong survivors, or prepare multiple, invalid SOAs, and never know it.
Survivorship ownership agreements work best for husband and wife who bought the asset together in the first place. Other owners may prefer a Will, because it is revocable and avoids joint ownership. If signing an SOA anyway, register it immediately while all the joint owners remain available to correct mistakes.