Joint Tenancy Law

Joint tenancy is a form of property co-ownership where two or more people hold title to an asset. It’s commonly used in the ownership of real property (such as a house), but it can also apply to other assets like bank accounts or vehicles. Under joint tenancy, each party has an undivided right to use the entire property, and each party owns an equal share. That means, for instance, if there are two joint tenants, each owns 50% of the property.

One important feature of joint tenancy is the “right of survivorship.” This means that if one of the joint tenants dies, their interest in the property automatically passes to the surviving joint tenant(s) rather than becoming part of the deceased person’s estate. For example, if a husband and wife own their home as joint tenants and the husband dies, the wife automatically becomes the sole owner of the home.

The right of survivorship can help avoid the costly probate process. Probate is the legal process that happens after a person dies and includes:

• Proving in court that the deceased person’s will is valid.
• Identifying the deceased person’s property.
• Appraising the property.
• Paying debts and taxes.
• Distributing the remaining property as the will (or state law, if there’s no will) directs.

This can be a lengthy and costly process.

However, because property held in joint tenancy automatically passes to the surviving tenant(s) outside of probate, it doesn’t need to go through this process. This can potentially save time and reduce the expenses associated with settling the deceased person’s estate. Note that this does not remove the need to pay any due taxes – such as inheritance or estate tax – where these are applicable.

But remember, while joint tenancy has its advantages, it also has its downsides, including a lack of control over the property and potential exposure to co-tenants’ creditors. Thus, consulting with a legal advisor or attorney is always recommended when considering the best way to hold title to property.

How Is a Joint Tenancy Created?

Creating a joint tenancy requires the fulfillment of certain legal requirements, often referred to as the four unities:

• Unity of Interest: Each joint tenant must have an equal ownership interest in the property. For example, if three joint tenants own a house, each tenant would have a one-third interest in the property.
• Unity of Time: All joint tenants must acquire their interest in the property at the same time.
• Unity of Title: Joint tenants must all acquire the property in the same deed or will.
• Unity of Possession: All joint tenants must have an equal right to occupy and use the entire property.

These unities must be explicitly stated in the deed or document, creating the joint tenancy. The language used in the deed might be “A and B as joint tenants with right of survivorship” or similar language that clearly indicates the intention to create a joint tenancy, not some other form of ownership. If the language is unclear, or if the four unities are not present, a court may determine that a different form of ownership, such as a tenancy in common, was created instead.

What Are the Features of a Joint Tenancy?

There are several distinctive features of a joint tenancy:

• Equal Ownership: In a joint tenancy, each tenant (owner) holds an equal interest in the property. For example, if there are three joint tenants, each would own a one-third interest.
• Right of Survivorship: The distinctive feature of a joint tenancy is the right of survivorship. This means that when one joint tenant dies, their interest in the property automatically passes to the surviving joint tenant(s), not to the deceased tenant’s heirs or beneficiaries under a will or trust. This happens “by operation of law” and does not require a probate court’s involvement.
• Unity of Possession: All joint tenants have an equal right to occupy and use the entire property, not just a specific portion of it.
• Severability: A joint tenant can sever the joint tenancy at any time by transferring their interest in the property to someone else. This would convert the joint tenancy into a tenancy in common, another form of co-ownership that doesn’t have the right of survivorship.

Avoiding probate is one of the key characteristics of joint tenancy. Probate is a legal process in which a deceased person’s estate is administered and distributed. It can be time-consuming, expensive, and the process becomes part of the public record. However, assets owned in joint tenancy, pass directly to the surviving joint tenant(s) without going through probate.

Here’s a more detailed explanation of how this works.

When a joint tenant dies, their interest in the property does not become part of their probate estate – that is, it is not distributed according to their will or the state’s intestacy laws (which kick in when someone dies without a will). Instead, the deceased tenant’s interest automatically passes to the surviving joint tenant(s).

To formalize this transfer, the surviving joint tenant(s) typically need to file a few documents with the county recorder’s office or a similar government agency: a death certificate for the deceased tenant and a new deed showing the change in ownership. But this is usually a straightforward process, especially compared to probate, which can involve court appearances, a lot of paperwork, and potential legal fees.

How Can a Joint Tenancy Be Terminated?

A joint tenancy can be terminated in several ways:

• Severance: A joint tenant can terminate the joint tenancy by selling or transferring their interest in the property to another party. This action will break the unity of title, and it will convert the joint tenancy into a tenancy in common for the new owner. The remaining original tenants, however, will continue to hold their shares as joint tenants.
• Mutual Agreement: All joint tenants can agree to terminate the joint tenancy and either sell the property or agree to a different form of co-ownership. This could be a written agreement, or it could occur as a result of actions that demonstrate the tenants’ intention to terminate the joint tenancy.
• Partition: If the joint tenants cannot agree on the disposition of the property, one or more of them can file a lawsuit to “partition” the property. The court will then order the property to be divided, if feasible, or sold, with the proceeds distributed among the joint tenants.
• Death: The death of a joint tenant will result in the termination of joint tenancy. The deceased tenant’s interest in the property will automatically pass to the surviving joint tenant(s) due to the right of survivorship.

Do I Need a Lawyer for Joint Tenancy Issues?

Property law and its implications can be complex, and the decisions you make can have long-term financial and legal consequences. If you are considering joint tenancy or you’re facing issues related to it, consulting with a qualified property lawyer is strongly advised. They can help you understand the benefits and potential risks and can guide you through the process of creating or terminating a joint tenancy.

LegalMatch is an online service that matches you with pre-screened, qualified lawyers in your area based on the specifics of your case. If you need a property lawyer for your joint tenancy issue, simply present your case on LegalMatch. You’ll start receiving offers from lawyers who are ready and willing to help. LegalMatch takes the guesswork out of finding the right lawyer for your needs.