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Joint Tenants & Tenants in Common Forms



What Are Your Rights in Joint Tenant Property?

Joint ownership s an important tool in asset protection, such a when property is owned jointly with survivorship rights. By leaving property to another, such as when property is owned jointly by husband and wife, the surviving property owner or surviving spouse avoids having to probate the asset and can claim ownership of the deceased owner's interest automatically upon the death of the other property owner. All that is required to remove the deceased owner from the deed is filing of the proper form according to local procedures, which vary by local recorder's office. A copy of the death certificate may be required to be submitted along with the appropriate form as proof of the death of the property owner.

Buying property as joint tenants may also be sought by those who aren't husband and wife for the purpose of pooling investment funds. When co-owners are unrelated, they may wish to hold an interest in the property as tenants in common, without a right of survivorship, so that each owner may separately will or transfer their share of interest in the property. Let's take a look at the different forms of joint ownership to compare the advantages and drawbacks of each:

  • Joint tenants with rights of survivorship - In this form of joint ownership, the survivorship rights attached to the deed give surviving co-owner(s) the portion(s) of a deceased property owner if one of the joint tenants passes away. There needs to be consent of all joint tenants before a tenant's interest in the property can be transferred to a third party.

  • Tenants in common - Tenants in common own real or personal property in a manner that entitles each owner to an "undivided interest" in the property and equal right to make use of the property. Joint tenants in common may own an unequal interest in the property, but each has the right to use and occupy the entire property. If one of the tenants in common dies, there is no right of survivorship, and each tenant may separately sell, mortgage or will their interest to another. A tenancy in common interest is different from a joint tenancy interest, which transfers to the survivor outside of probate. When a tenant in common dies, the estate must go through probate to transfer the interest in the tenancy in common.

  • Tenants by the entireties - A joint tenancy between husband and wife is sometimes referred to as a tenancy by the entirety. Tenancy by the entirety doesn't allow one joint tenant to change the ownership and there are differences in tax law rules. Whether you must state in the deed that the property is being transferred to the husband and wife as tenants by the entirety, depends on the jurisdiction. Unless the deed states otherwise, some states assume a transfer to a married couple is meant to create a tenancy by the entirety . Deeds and contracts to transfer or sell real estate must be signed by all joint tenants, and their spouses.

  • Community property - A community property agreement is allowed in some states to change separate property to community, or vice versa, through a written agreement by the spouses.