Joint tenancy with rights of survivorship is a legal concept that applies to property ownership.
Here’s what it means when property is owned as joint tenants with rights of survivorship:
1. Co-ownership
In joint tenancy, all the joint tenants own an equal share of the property. This means that they each have an undivided interest in the entire property, and no individual has exclusive ownership of any specific portion of the property.
2. Right of Survivorship
The most important aspect of joint tenancy with rights of survivorship is that when one of the joint tenants passes away, their ownership share doesn’t pass through their estate or will.
Instead, the deceased person’s share automatically and immediately transfers to the surviving joint tenant(s). This transfer occurs without the need for probate proceedings, which can streamline the process of transferring ownership.
3. Equal Shares
Each joint tenant holds an equal share in the property, regardless of their financial contribution toward its acquisition or maintenance. This ensures that all joint tenants have an equal stake in the property.
4. Unity of Time, Title, Interest, and Possession
To create a valid joint tenancy with rights of survivorship, certain conditions must be met:
- Unity of Time: All joint tenants must acquire their ownership interests at the same time.
- Unity of Title: All joint tenants must acquire their interests from the same source, like the same deed.
- Unity of Interest: All joint tenants must have equal ownership interests.
- Unity of Possession: Each joint tenant has the right to possess and use the entire property, not just a specific portion.
Tim’s Legal Tip: Joint tenancy with rights of survivorship is commonly used among married couples, family members, or business partners who want a straightforward way to transfer ownership to the surviving co-owner(s) without the complexities of probate.
The Benefits of Joint Tenancy with Rights of Survivorship
Joint tenancy with rights of survivorship carries several advantages. Let’s explore the benefits.
Benefit 1: Streamlined Transfer of Ownership
One of the primary advantages of joint tenancy with rights of survivorship is the seamless transfer of ownership.
In the event of a joint owner’s death, their share of the property automatically transfers to the surviving owner(s).
This avoids the probate process, saving time and potential costs for the heirs.
Benefit 2: Avoidance of Probate
Probate can be a lengthy and costly legal process that validates a will and distributes a deceased person’s assets. With joint tenancy with rights of survivorship, the property avoids probate altogether since it passes directly to the surviving owner(s).
This can save a substantial amount of time and money and provide relief to families during a challenging time.
Benefit 3: Survivorship Rights
As the name suggests, this ownership arrangement includes survivorship rights. If one owner passes away, their share of the property immediately transfers to the remaining owner(s).
Benefit 4: Equal Ownership
Joint tenancy typically implies equal ownership shares among all co-owners. This equality can simplify decision-making processes, making it easier to manage the property collectively. It also prevents conflicts that might arise from unequal ownership shares.
Benefit 5: Potential Tax Benefits
In some cases, joint tenancy with rights of survivorship can offer tax benefits. Upon the joint owner’s death, the property’s value is “stepped up” to its current market value, potentially reducing capital gains taxes if the property is sold later.
The Disadvantages of Joint Tenancy With Rights of Survivorship
Disadvantage 1: Limited Control
While joint tenancy provides shared ownership, it also means relinquishing some level of individual control over the property. Major decisions, such as selling the property, will require unanimous agreement from all co-owners, which could be challenging to achieve.
Disadvantage 2: Creditors’ Claims
In a joint tenancy arrangement, each owner’s creditors can pursue their debts by placing liens on the property. This could put the property at risk if one owner faces financial difficulties, affecting the other owners as well.
Disadvantage 3: Unintended Consequences
Joint tenancy’s automatic transfer feature might lead to unintended consequences. For example, if a parent adds an adult child as a co-owner for estate planning purposes, the child’s financial issues or divorce could jeopardize the property’s ownership.
Disadvantage 4: Gift Tax Implications
Adding someone as a co-owner through joint tenancy could be considered a gift for tax purposes. If the value of the gift exceeds the annual exclusion limit, it might trigger gift tax reporting and potential tax liability.
Disadvantage 5: No Control over Survivorship
In joint tenancy, ownership transfer is automatic, regardless of the deceased owner’s wishes. This lack of control might not align with an individual’s estate planning goals, particularly if they desire a different distribution of assets.
Setting Up Joint Tenancy
In most states, joint tenancies are disfavored by courts. As such, there must be a clear expression of intent in the deed to create a joint tenancy with rights of survivorship. :
- Clear Ownership Intent: All owners must clearly express their intent to create a joint tenancy. This intent is documented in the property’s title or deed.
- Clear Language in the Deed: The language usually required in the deed is “A to B as joint tenants with rights of survivorship.” In most courts today, when two or more people take property by a single conveyance, a “tenancy in common,” not a joint tenancy, is presumed. A joint tenancy only results when the conveyance deed clearly expresses an intention to create one.
- Equal Ownership Shares: Each owner must have an equal share in the property. This “four unities” requirement includes unity of time, title, interest, and possession.
- Simultaneous Acquisition: All owners must acquire their ownership interests simultaneously.
Can a Joint Tenancy Be Severed?
Yes, joint tenancy can be severed. Joint tenants have several other ways to terminate a joint tenancy. They are as follows:
1. Record a Declaration
A co-owner can file a notice of severance or a similar document with the appropriate government office responsible for property records.
This notice serves as a formal declaration of their intent to sever the joint tenancy.
While this action might not necessarily sever the tenancy itself, it creates an official record that can impact the property’s ownership and may lead to further legal actions.
2. Selling or Conveying an Interest in the Property to a Third Person
An inter vivos conveyance by one joint tenant of his undivided interest destroys the joint tenancy so that the transferee takes the interest as a tenant in common and not as a joint tenant.
Example:
Here is how a conveyance would operate: For instance, “Ella,” “Frank,” and “Grace” jointly own a property, signifying that each holds an equal 1/3 share. Grace decides to transfer her interest to “Henry.”
As a result of Grace’s transfer, the joint tenancy arrangement is severed. Consequently, Henry possesses a 1/3 share of the property as a tenant in common.
Nevertheless, since neither Ella nor Frank transferred their interests, they still retain their ownership shares in the property as joint tenants, with the right of survivorship remaining intact between the two of them.
3. File an Action for Partition
Filing a partition lawsuit and obtaining a judgment severing the property
A partition lawsuit is a legal process used to resolve disputes among co-owners of a property, particularly when they no longer wish to continue owning the property together.
This legal action allows co-owners to request the division or sale of the property so that each co-owner can receive their fair share of its value or separate ownership of a portion of the property.
4. The Joint Tenants Agree to Sever the Property
Parties can agree to sever a joint tenancy. This entails transforming the joint tenancy, where co-owners share property with survivorship rights, into a tenancy-in-common, granting each owner a distinct and separate share of the property that they can manage individually.
To accomplish this, all co-owners must mutually consent to the severance. They typically draft a written document, often known as a “severance agreement,” which outlines their intention to sever the joint tenancy.
5. Another Form of Civil Judgment
A divorce decree and other legal judgments, such as a probate judgment, can lead to severing a joint tenancy arrangement.
In the context of a divorce, a divorce decree holds the power to sever a joint tenancy between former spouses. The decree typically outlines property division, and if it designates the transfer or division of the property as part of the divorce settlement, the joint tenancy can be severed, paving the way for new ownership structures.
Similarly, in the case of a probate judgment, if one of the joint tenants passes away, the property’s fate may be determined through the probate process.
Depending on the outcome of this process and relevant legal regulations, the property might be transferred to heirs or beneficiaries according to the deceased owner’s will or intestate succession laws.
Such a transfer can potentially sever the joint tenancy and establish new ownership terms.
6. An Execution Sale
An execution sale is a legal process where a property is sold by court order to satisfy a debt or judgment owed by one of the property’s owners.
This situation often arises when a creditor obtains a judgment against a debtor and seeks to recover the owed amount by selling the debtor’s assets, including real estate.
In the context of a joint tenancy, if one of the co-owners faces financial difficulties and a creditor successfully obtains a judgment against them, the creditor may proceed with an execution sale of the property to collect the owed debt.
When an execution sale involves a property held in joint tenancy, the consequences can be significant. Typically, the sale consists of the debtor’s share of the property being sold rather than the entire property.
This action effectively severs the joint tenancy arrangement between the debtor and the other co-owners. The purchaser of the debtor’s share then becomes a tenant-in-common with the remaining co-owners.
This shift from joint tenancy to tenancy-in-common means that the new owner’s share is no longer subject to the joint tenancy’s right of survivorship. Instead, they have independent control over their portion of the property and can manage it according to their own decisions.
Why Would Someone Want to Sever a Joint Tenancy
There are several reasons why a person may want to sever a joint tenancy with rights of survivorship and convert it into a tenancy-in-common arrangement. Some common reasons include:
- Estate Planning: Individuals often choose to sever a joint tenancy as part of their estate planning strategy. By converting to tenancy-in-common, they can control how their share of the property is distributed upon their death rather than automatically passing to the surviving co-owner(s).
- Desire for Independent Control: One co-owner might want more control over their share of the property. In a joint tenancy, decisions about the property, such as selling or mortgaging it, typically require the consent of all co-owners. By severing the joint tenancy, a co-owner gains more independence in managing their share.
- Asset Protection: Severing a joint tenancy can be a way to protect one’s share of the property from the financial liabilities or creditors of the other co-owner(s). With tenancy-in-common, each co-owner’s share is treated as a separate asset.
- Second Marriage or Blended Families: Individuals who remarry or have blended families might want to ensure that their share of the property is distributed according to their wishes rather than automatically passing to their co-owner or co-owner’s heirs.
- Business or Investment Purposes: If the property is used for business or investment purposes, one co-owner might want more control over decisions related to the property’s management, rental income, or potential sale.
- Disputes or Relationship Changes: Disagreements or changes in relationships among co-owners can lead to the desire to sever the joint tenancy. This could be due to conflicts about property use, maintenance, financial contributions, or other factors.
- Differing Investment Goals: Co-owners might have different long-term goals for the property. For instance, one co-owner might want to sell their share to invest in a different opportunity, while another co-owner might want to keep the property.
- Tax Planning: Depending on local tax laws, severing a joint tenancy could have tax implications. Some individuals might choose to sever the joint tenancy to optimize their tax situation.
- Privacy Concerns: Severing the joint tenancy might be a way to maintain privacy regarding the property’s details, such as its value or related financial transactions.
- Future Flexibility: By severing the joint tenancy, co-owners can create a more flexible ownership structure that allows for changes in circumstances over time.
FAQs
Q. Can a Joint Tenant Mortgage Their Interest?
Yes, a joint tenant can mortgage their interest in the property. However, it’s essential to consider the implications for the other joint tenant(s). The mortgage lender’s rights might be limited to the mortgaging owner’s share, and foreclosure could lead to a change in ownership if the property is sold to repay the debt.
Q. What Happens if a Joint Tenant Wants to Sell Their Share?
A joint tenant has the right to sell or transfer their share of the property. However, this action will likely sever the joint tenancy. The new owner would become a tenant in common with the remaining owner(s), and the right of survivorship would no longer apply to the selling joint tenant’s share.
Q. Does Joint Tenancy Have Tax Implications?
Joint tenancy can have tax implications, particularly regarding capital gains taxes. When one joint tenant passes away, the property’s value is “stepped up” to its current fair market value, which can reduce the potential capital gains tax liability for the surviving owner(s) when they eventually sell the property.
Q. What Happens if All Joint Tenants Pass Away Simultaneously?
If all joint tenants pass away simultaneously, the right of survivorship cannot be applied. In this case, the property would be subject to the respective owners’ wills, or if no wills exist, the property would be distributed according to state laws of intestate succession.
Conclusion
In conclusion, joint tenancy with rights of survivorship offers a streamlined and efficient way for co-owners to manage property ownership and transfers.
This arrangement’s automatic right of survivorship, avoidance of probate, and equal ownership shares make it an attractive option for families, couples, and business partners.