- Legal EditorHenry Dahut, J.D.
Henry Dahut, J.D.
Attorney - Legal Publisher - Educator
Henry Dahut is a licensed California trial attorney. Over the course of his 30-plus years practicing law, Henry has represented and counseled countless clients in legal trouble.
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What Is Joint Tenancy?
A joint tenancy is a legal designation that is used to designate shared ownership. The key feature is the “right of survivorship.” This means that while the joint tenants equally share ownership during their lifetimes, when one joint tenant dies, their interest is extinguished, leaving the surviving joint tenant(s) with sole ownership without the need to probate the property’s ownership.
In some states, the survivorship feature attaches automatically when the title is held as “joint tenants.” But in many states today, the survivorship feature does not connect to a joint tenancy unless expressly stated in the instrument.
In these states, for the surviving joint tenant to take the property, the conveyance must add some particular language, such as “as joint tenants with right of survivorship.” Simply saying “as joint tenants” will not be sufficient.
Can a will break a joint tenancy?
Q. My dad left a will that left all of his property (including his home) to my brother and me. But a few years before he died, he had placed his home in joint tenancy with my sister. Who gets the home?
A. Your sister gets the home – unless you and your brother can prove that the joint tenancy was established “for convenience only.” This would be very hard to prove, mainly when the asset transferred is real estate. Therefore, because the right of survivorship attaches to joint tenancy property, your dad’s interest in the home probably passes automatically to your sister on his death. The right of the surviving joint tenant is superior to that of the heirs of the deceased joint tenant.
What is a “joint tenancy for convenience”?
Q. About five years ago, after my father suffered a heart attack, he put my sister’s name on his bank account, making her a joint account holder with him. He did this so that she could have access to his funds to pay his bills if he became incapacitated. Dad recently died, and his will leaves all of his property to his three children equally.
My sister claims she should take all of the funds in the bank account, and only the rest of Dad’s property should be divided among us. I don’t think this is what Dad wanted. Who will get the funds in the bank account?
A. This is a tricky question. In some states, the courts will go by how the title is held to give the funds to your sister as the surviving joint tenant. But in many states, especially when dealing with joint bank accounts, the courts will look behind the title.
If you can prove that your dad did not want to convey ownership to your sister but set up the joint account simply “for convenience only,” you have a good chance of having the bank account pass under the terms of your dad’s will to all three of his children. You should see a lawyer experienced in estate planning to discuss this.
Should I put my property in joint tenancy with my children?
Q. My husband recently died, and I am now the sole owner of the family home, which is worth a good deal. When I die, I want the home to go to my three children – and I don’t want to have to pay probate fees. A friend suggested that I transfer the home to myself and three children as joint tenants with survivorship rights. Is this a good idea?
A. While creating a joint tenancy will work to keep the property out of your probate estate, you might prefer a living trust for several reasons.
First, the living trust will provide you with much greater control and flexibility. If you create a joint tenancy, you give your children a current irrevocable interest in the home. If you change your mind and choose to leave all or part of your home to others or if you’re going to exclude one of your children from taking part, you will not be able to do so.
Moreover, if you later choose to sell your home, all of your children will have to consent, and on its sale, they would be legally entitled to share in the sale proceeds. Furthermore, you might owe a federal gift tax by creating this joint tenancy because your creation of the joint tenancy will be considered a taxable gift.
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