Joint Tenancy FAQ
Joint tenancy is one form of co-ownership. In a joint tenancy, two or more persons, known as the co-owners, own property together. This includes real property. Other forms of co-ownership include tenants-in-common and a tenancy by the entirety.
These forms of ownership are not limited to real estate. They apply to other forms of property, including personal property and bank accounts.
This article will explore a few frequently asked questions (FAQ) about joint tenancy.
What is a joint tenancy?
A joint tenancy is one way more than one person can jointly own property. Unlike other types of co-ownership, each joint tenant has equal interests and rights of ownership. Although joint tenancies are similar to community property, they are not synonymous.
In states that recognize community property, it is a type of ownership limited to married couples.
How is a joint tenancy formed?
A joint tenancy requires the presence of four unities in its formation.
The four unities are as follows:
- Unity of Time: the joint owners acquire the property at the same time
- Unity of Title: the joint owners acquire the property in the same legal instrument, often a joint tenancy agreement
- Unity of Interest: each joint owner has equal shares of the property
- Unity of Possession: each joint tenant has the right to possess the entire property
If any of these unities fails, there is no joint tenancy. For example, if the parties acquire the property at different times, there is no unity of time. If they acquire the property in different documents, like a deed or will, there is no unity of title and no joint ownership of the property.
How does a joint tenancy work?
Joint tenancies are often applied to homeownership. Joint ownership is one way to own a home and is not limited to married couples. Family members, friends, or business partners can own a house together.
Each co-owner has an equal interest in the property. This applies to financial obligations, like mortgage payments or an equal share of rental income. Each co-owner has equal rights, so another co-owner cannot restrict their use of the property.
What is a joint tenancy with rights of survivorship?
In a joint tenancy with the right of survivorship (JTWROS), all tenants have a legal right of survivorship. A right of survivorship means if one joint owner dies, the title automatically passes to the surviving owners.
The surviving owners then receive sole assets or real property ownership without going to probate court.
In many jurisdictions, the term "with right of survivorship" must appear in the grantee clause of the deed; otherwise, the law assumes a tenancy-in-common.
Can a joint tenancy property pass to unintended heirs?
Yes, property owned in joint tenancy can pass to unintended heirs. Typically, joint tenancy ownership can pass property to a new spouse. This does not mean the property will pass to children when a surviving spouse remarries.
For example, consider a married couple that owns all of their assets in joint tenancy. Spouse A dies, so all assets pass to the surviving spouse, Spouse B. Spouse B is now the sole owner of the property.
If Spouse B remarries and places the property in a joint tenancy with a new spouse, Spouse A's children have no rights to the property. If Spouse B dies, all property passes to the new spouse, not to the children as their parents originally intended. The new spouse's children (unintended heirs) could inherit the property.
Does a joint tenancy avoid probate?
No, a joint tenancy does not avoid probate. In most cases, it delays the probate process.
After the death of the first joint tenant, title automatically passes to the surviving joint tenant. This avoids the probate process on the first death.
Imagine a married couple who owns all their assets in joint tenancy. On the first spouse's death, there is no probate because ownership automatically passes to the surviving spouse.
When that surviving spouse dies, the property may then go through the probate process. To avoid probate, the surviving spouse can create a new joint tenancy or place assets in a living trust.
What is the primary difference between a joint tenancy and a tenancy-in-common?
In a joint tenancy, the co-owners each have a right of survivorship. In a tenancy-in-common (TIC), they do not. Unlike a joint tenancy, where the joint partners have equal interests and equal shares, in a TIC the parties often have unequal ownership interests. For example, one co-owner may have a 50% interest in the property while the other two each have a 25% interest.
Joint tenancy vs. Tenancy-in-common
Joint tenancies and tenancies-in-common each offer advantages and disadvantages. A party's choice of property ownership depends on their needs and wants. The choice of tenancy is an essential aspect of estate planning because it helps owners decide how to distribute their assets.
Joint Tenancy Advantages
One advantage of joint tenancies is the right of survivorship. When one joint partner dies, the property automatically passes to the surviving joint tenant, thereby avoiding probate. The decedent cannot pass on their ownership interest without severing the joint tenancy. Another advantage of a joint tenancy is equal ownership and rights.
Joint Tenancy Disadvantages
For some joint tenants, the right of survivorship is a disadvantage, limiting the co-owners ability to pass on their ownership interest.
In a TIC, a co-owner may pass on their ownership interests to a third party. The deceased owner's interests and shares do not automatically pass to a co-owner. A TIC has no preconditions, like the joint tenancy, so that co-owners can sell their ownership interests at any time.
One disadvantage of a TIC is unequal interests. Equal possession is often a disadvantage because no single co-tenant has exclusive control of the property. Each co-tenant can use or abuse the property as they see fit, often to the harm of the other co-tenants.
Get Legal Help
Different forms of joint ownership have advantages and disadvantages. Prospective property owners should consult a local real estate attorney before making final decisions. They can give legal advice on the benefits and obligations of a joint tenancy. Speak to an experienced local real estate attorney today.
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