Joint Tenancy With Right Of Survivorship

joint tenancy with right of survivorship

In this article, you will learn how to create a joint tenancy with right of survivorship in real estate. This makes it easier to manage the property when one person passes away.

A joint tenancy with right of survivorship (JTWROS) is an arrangement in which two or more people own a piece of property as co-owners. Each owner has equal rights to use the property. If there are two owners, they each own an undivided one-half of the property at any given time. If one owner dies, the other owner inherits his/her share of the property. JTWROS is often simply referred to as “joint tenancy.”

Who Can Be A Joint Tenant?

A joint tenant may be any living person. However, it is wise not to make a minor child or incompetent person a joint tenant. If the other tenant dies, and the child or incompetent becomes the sole owner, then that person’s interest must be managed by a conservator.

What Are The Advantages Of Joint Tenancy?

There are several advantages to joint tenancy. First, when one tenant dies, the other tenant inherits his/her entire interest in the property. No probate is necessary. Second, the survivor has no obligation to pay any debts associated with the deceased tenant’s share of the property. Third, one tenant cannot sell the property without the consent of the other tenant. Fourth, the survivor can transfer the property to whomever he/she chooses. Fifth, the survivor can use the property as collateral for loans. Sixth, the survivor can leave the property to whomever she/he wants. Finally, each tenant can take out life insurance policies on the other tenant.

What Are The Disadvantages Of Joint Tenancy With Right Of Survivorship?

There are three main disadvantages of joint tenancy First, if one tenant becomes incapacitated, that person’s portion of the property could become subject to a court-ordered conservatorship.

Second, if you both die during the lifetime of the other tenant, then the surviving tenant gets everything. They can then choose whoever they want to inherit the property. (And that may not be who you wanted.)

Third, joint tenancy may result in the property going to someone you didn’t intend. Here’s how that can happen. Joint tenancy is sometimes used to avoid probate. If you have more than one child, for example, you might put a house in joint tenancy with one of your children. You get that child to promise to sell the house and divide the money among all children. However, there is no legal requirement for this to happen. As a result, you benefit one child rather than all of your children equally.

Fourth, if one tenant has debts and the creditors get a judgment, the judgment will attach to the property. Also, if one tenant goes into bankruptcy, the property will be an available asset for the bankruptcy. If a tenant has unpaid taxes, the government could file a tax lien on the property.

Fifth, if you both die at the same time, then each of your shares go according to your Last Will and Testaments. If one of you dies without a Will, that person’s share goes according to state law.

All said, owning property in a trust is safer and more predictable.

How Do You Know Whether To Choose Joint Tenancy Or Not?

If you want own real estate jointly with another person, you should consider whether to choose joint tenancy or not. In general, joint tenancy can avoid probate and be simpler, assuming everything goes perfectly. However, using a trust is a safer and more predictable way to own property.

Is There Any Way To Avoid Joint Tenancy?

You can avoid joint tenancy by creating a trust instead. A trust is an arrangement where money or assets are held by trustees who manage them for the benefit of others. Holding real property in a trust is really the preferable method.

If you already own property in joint tenancy with right of survivorship, there are several ways of severing it. “Severing” joint tenancy means to eliminate the survivorship element. Keep reading.

How Can A Joint Tenancy Be Severed?

The process of terminating a joint tenancy is called severance. Here are some ways a joint tenancy can be severed.

  • Transfer to a trust
  • Contract by one tenant to convey the property
  • Transfer by one tenant to someone (including conveying back to him or herself.)
  • Judicial partition.

In re the Estate of Estelle, 122 Ariz. 109, 593 P. 2d 663 (1979).

Is Joint Tenancy 50/50?

Assuming there are two joint owners, then they own the property 50/50. If there are three joint owners, then they each own an undivided one-third.

Can A Joint Tenancy Be Willed?

The answer depends on who dies first. If one joint tenant dies, then the surviving joint tenant inherits the property. It doesn’t matter that the deceased owner had a will. However, when the surviving tenant later dies, that person’s property goes to the persons named in a will.

How To Take Ownership Of Joint Property After A Co-Owner’s Death?

For real property, the surviving owner simply records an Affidavit of Survivorship. The surviving owner could also record a certified copy of the death certificate. For a financial account, most financial institutions simply require a copy of the death certificate to transfer the property to the surviving co-owners.

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ABOUT THE AUTHOR

Founding attorney Paul Deloughery has been an attorney since 1998, became a Certified Family Wealth Advisor. He is also the founder of Sudden Wealth Protection Law.

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