What Is Joint Tenancy?
The term "joint tenancy" refers to a legal arrangement in which two or more people own a property together, each with equal rights and obligations. Joint tenancies can be created by married and non-married couples, friends, relatives, and business associates.
This legal relationship creates what is known as a right of survivorship so if one owner dies, their interest in the property is directly passed on to the surviving party(s) without having to go through probate or court system.
- Joint tenancy is a form of property ownership normally associated with real estate.
- Each party in a joint tenancy has an equal interest in the property—the financial obligations as well as any benefits.
- A joint tenancy creates a right of survivorship, which means that if one party dies, their interest is automatically transferred to the surviving tenant(s).
- Joint tenancy is different from a tenancy in common, where a deceased tenant's share is passed on to their heirs.
- A joint tenancy can be terminated unilaterally without the consent of the other tenants.
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How Joint Tenancy Works
Joint tenancy is a form of property ownership normally associated with real estate. Two or more parties come together at the same time to make a legally-binding agreement with one another through a deed. These parties may be relatives, friends, or even business associates. For example, let's say an unmarried couple purchases a house. At the time of purchase, they opt for joint tenancy. The deed to the property will name the two owners as joint tenants.
Since each party has a claim to the property, they also share the benefits. If they decide to rent out the home to another individual or if they sell the property, each party is entitled to a 50% share in the profits. But the relationship also means they are equally responsible to pay for the property including mortgage payments, property taxes, and maintenance. If one fails to live up to the financial obligations, the other party must assume responsibility.
Rights of Survivorship
This agreement also creates what's referred to as a right of survivorship. This means that if one person dies, the other party automatically assumes full ownership of the property. This eliminates the need for probate or the transfer of a deceased person's assets to an estate. Probate courts decide the validity of a person's will and divide the assets up appropriately among the deceased's beneficiaries.
Although joint tenancy is most closely associated with real estate ownership, the broader legal concept of joint tenancy with right of survivorship can apply to a range of assets, including businesses and brokerage accounts. A strong association with real estate exists because the term tenancy is seen as synonymous with owning or living in a home.
There is no need for the property to go through the probate system since a joint tenancy creates a right of survivorship.
Advantages and Disadvantages of Joint Tenancy
Although joint tenancy has a number of advantages, there are some distinct disadvantages as well that should be considered before entering into the arrangement.
As mentioned earlier, as long as one joint tenant survives, it avoids the headaches of clearing the property through an estate via a will. Typically, a person's will upon death goes through probate, which is a legal process whereby the courts review a will to validate it. Typically, when a person dies, their assets cannot be accessed or claimed by the survivor until probate releases them.
The probate process also helps determine how a deceased party's assets are distributed if the person doesn't name beneficiaries or doesn't have a will in place. However, the process can easily take months to sort out. A joint tenancy avoids probate and the lengthy legal process that allows the joint tenant to take ownership of the assets immediately.
In addition to sharing the benefits of the property, all of the parties in a joint tenancy share responsibility for the property. For example, one person in the couple can’t take out a mortgage loan on the property and leave their partner with the debt. The joint tenancy applies for all of the assets as well as the debts—meaning if a loan is taken out on the property, both are responsible for the debt.
Divorce or marital issues can complicate a joint tenancy. As stated earlier, all debts are owned by both parties, and neither can sell their assets that are owned jointly without consent from their partner.
Another disadvantage of joint tenancy can appear in the handling of the asset upon the death of one or more of the joint tenants. Joint tenancy gives all the rights to the survivor, so even if the deceased was hoping to pass the value of the property to designated heirs, there is no legal obligation for the survivor to honor that request.
Joint tenancy avoids probate court when one of the tenants dies.
Even with no will or beneficiaries named, the joint tenant inherits everything immediately.
Marital issues can complicate and delay sale of assets since both tenants must agree.
Joint tenancy gives all assets to the parter—not allowing the deceased to pass assets to heirs.
Joint Tenancy vs. Tenancy in Common
One way to avoid losing control of the disposition of the property upon death, some joint owners opt for tenancy in common (JTIC) instead of a joint tenancy. Tenancy in common allows for percentage-based ownership, and shares can be traded and tenants added throughout the life of the arrangement rather than just at inception.
In other words, upon death, the assets don't automatically go to the surviving partner as with joint tenancy—instead, the tenancy in common allows the assets to get distributed as stipulated in the decedent's will and local laws.
Frequently Asked Questions
What Does Joint Tenancy with Right of Survivorship Mean?
A joint tenancy with right of survivorship is a form of ownership where each party shares equal rights in a property. If one of the owners dies, their share of the property is not probated with their estate—instead, it is passed on to the other joint tenants.
How Do You Create a Joint Tenancy?
In order to create a joint tenancy with rights of survivorship, the prospective tenants need to declare their joint tenancy on the title document or deed of the property that they are sharing. When listing their names on the title, they would also indicate that they are holding the property "as joint tenants with right of survivorship."
In order to establish a joint tenancy, each tenant must have an equal share, equal rights to the property, and acquire ownership at the same time and title.
How Do You Sever a Joint Tenancy with Right of Survivorship?
You can usually sever a joint tenancy unilaterally, without the knowledge or permission of the other tenants. The simplest way to do that is by selling your interest in a property to someone else, who then becomes a tenant in common with the other joint tenants.
It is also possible for a joint tenant to simply transfer their interest to themselves, thereby transforming their interest into a tenancy in common. Each state has different laws, so it is important to research thoroughly before modifying a tenancy.
The Bottom Line
Joint tenancy is a legally simple way for two or more people to share equal interests in real estate or another form of property. When one tenant dies, there is no need to probate their share of the property with their estate. Instead, the share belonging to the deceased tenant is simply passed on to the remaining joint tenants.