There are three popular types of joint ownership of property (which can include real estate, a bank account, a car etc.): tenancy in common (allows ownership of unequal shares in property), joint tenancy (ownership of equal shares in property) and tenancy by the entirety (available only to a husband and wife).

Each has unique requirements and features which can have serious legal implications for all parties as to the ownership and the distribution of property after their death.

Joint tenancy occurs when two more people purchase and hold (equally) title to the undivided shares of interest in the entire property. In the case of a joint tenancy, each tenant has the equal right to use of the land and each has the right to a share of the rents and property.

Joint tenancy are created when the following conditions are met:

  • All tenants obtained the land at the same time (unity of time);
  • The same document grants title to all tenants;
  • Each tenant has an equal interest in the land; and
  • Each tenant can exercise equal right to possession

It is important that all these conditions are met because a court may otherwise find another form of joint ownership (usually, a tenancy in common) exists, which can have important implications.

Joint tenancy and tenancy in the entirety are unique because the shares of the deceased tenant goes to the other tenant by right of survivorship. With the right of survivorship in a joint tenancy, the surviving party can avoid the costly probate process.

This means that the tenants do not have the right to name a beneficiary to the property and, even if they do, the beneficiary has no legal right to the property.

What is Probate?

Probate is a process that is legal in nature and deals with the distribution of the assets of a deceased person through some instrument (i.e. a will) or by operation of law. Through the probate process, the court will determine the validity of a will and determine whether there are any taxes and debts in connection with the deceased person’s estate. The deceased person’s instructions with regard to the disposition of their estate to their heir(s) is carried out, including the distribution of any real or personal property.

How Does Joint Tenancy Avoids Probate?

Because of the right of survivorship in any joint tenancy arrangement, there is no property to be distributed in the traditional sense, thus avoiding inheritance claims by the deceased tenant’s heirs. The other tenant(s) automatically gains the share of the interest in the property held by the deceased tenant.

Keep in mind, however, that some states require the right of survivorship to be explicitly claimed, which can impact the smooth transfer of the deceased tenant’s share to the surviving joint tenant.

Additionally, in the case where only one joint tenant remains or in the remote likelihood that each tenant dies at the same time, care should be taken to ensure their wishes are understood as to the final transfer of property in the event of their death.

How Do I Claim the Right of Survivorship?

When the right of survivorship is not expressly claimed, the automatic transfer of the deceased tenant’s share of interest in the property to the surviving tenant might become complicated. To claim the right to survivorship, it is important that the title or the description of the title (i.e. Joint Tenancy with Right Of Survivorship), includes this right as to all surviving tenants. 

If the right of survivorship is not claimed, then the automatic transfer of the property is not guaranteed and the deceased tenant’s share might be contested. If that is the case, probate laws will apply and the deceased tenant’s heirs may be entitled to the decedent’s share in the property.

How Do I Terminate My Right of Survivorship?

Sometimes the parties in a joint tenancy may choose to avoid the right of survivorship, say in the case where they seek to create a tenancy in common instead or where they would like to name an heir for their share in the property. There are a few ways in which this can be done.

They can choose to contract for the elimination of the right to survivorship, which likely will lead to the creation of a tenancy in common, which does not have a right of survivorship as a quality.

An interested joint tenant can also eliminate the right to survivorship by selling their individual property interest. Any time a new party is added, a new joint tenancy must be created because the unity of time has been destroyed. Finally, the joint tenancy may be deemed invalid by a court, which would extinguish the right of survivorship.

Do I Need an Attorney for Issues with Joint Tenancy and Probate?

Creating a joint tenancy arrangement with the help of a local estate lawyer can be helpful. They can advise you about any nuances in your state as to this type of joint ownership and help you understand how to best protect the legal interests of you and your co-tenants.