joint tenancy

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Joint Tenancy

A type of ownership of real or Personal Property by two or more persons in which each owns an undivided interest in the whole.

In estate law, joint tenancy is a special form of ownership by two or more persons of the same property. The individuals, who are called joint tenants, share equal ownership of the property and have the equal, undivided right to keep or dispose of the property. Joint tenancy creates a Right of Survivorship. This right provides that if any one of the joint tenants dies, the remainder of the property is transferred to the survivors. Descended from common-law tradition, joint tenancy is closely related to two other forms of concurrent property ownership: Tenancy in Common, a less restrictive form of ownership that sometimes results when joint tenancies cease to exist, and Tenancy by the Entirety, a special form of joint tenancy for married couples.

Joint tenants usually share ownership of land, but the property may instead be money or other items. Four main features mark this type of ownership: (1) The joint tenants own an undivided interest in the property as a whole; each share is equal, and no one joint tenant can ever have a larger share. (2) The estates of the joint tenants are vested (meaning fixed and unalterable by any condition) for exactly the same period of time—in this case, the tenants' lifetime. (3) The joint tenants hold their property under the same title. (4) The joint tenants all enjoy the same rights until one of them dies. Under the right of survivorship, the death of one joint tenant automatically transfers the remainder of the property in equal parts to the survivors. When only one joint tenant is left alive, he or she receives the entire estate.

If the joint tenants mutually agree to sell the property, they must equally divide the proceeds of the sale. Because disagreement over the disposition of property is common, courts sometimes intervene to divide the property equally among the owners. If one joint tenant decides to convey her or his interest in the property to a new owner, the joint tenancy is broken and the new owner has a tenancy in common.

Tenancy in common is a form of concurrent ownership that can be created by deed, will, or operation of law. Several features distinguish it from joint tenancy: A tenant in common may have a larger share of property than the other tenants. The tenant is also free to dispose of his or her share without the restrictive conditions placed on a joint tenancy. Unlike joint tenancy, tenancy in common has no right of survivorship. Thus, no other tenant in common is entitled to receive a share of the property upon a tenant in common's death; instead, the property goes to the deceased's heirs.

Tenancy by the entirety is a form of joint tenancy that is available only to a Husband and Wife. It can be created only by will or by deed. As a form of joint tenancy that also creates a right of survivorship, it allows the property to pass automatically to the surviving spouse when a spouse dies. In addition, tenancy by the entirety protects a spouse's interest in the property from the other spouse's creditors. It differs from joint tenancy in one major respect: neither party can voluntarily dispose of her or his interest in the property. In the event of Divorce, the tenancy by the entirety becomes a tenancy in common, and the right of survivorship is lost.

Cross-references

Real Property.

West's Encyclopedia of American Law, edition 2. Copyright 2008 The Gale Group, Inc. All rights reserved.

joint tenancy

n. a crucial relationship in the ownership of real property, which provides that each party owns an undivided interest in the entire parcel, with both having the right to use all of it and the right of survivorship, which means that upon the death of one joint tenant, the other has title to it all. Procedurally, on the death of one joint tenant, title in the survivor is completed by recording an "affidavit of death of joint tenant," describing the property and the deceased tenant, with a death certificate attached, all of which is sworn to by the surviving joint tenant. This process avoids probate of the property, but may have some tax consequences which should be explored with an accountant at the time of recording the original deed. If the owners do not want full title to the property to pass to the survivor, then joint tenancy should not be used. Joint tenancy (as well as any other common ownership) between a parent and a minor child should be avoided since the property cannot be transferred in the future without the parent becoming appointed a guardian of the child's estate by court petition, and the property and the proceeds therefrom will be under court control until the child is 18. In community property states, some courts have found that joint tenancy presumes that the property is not community property, (which could result in loss of estate tax limitation on the death of the first spouse to die), but proof of community interests can be established. A bank account held in joint tenancy also presumes a right of survivorship, but this presumption can be overcome by evidence that the account was really the property of only one, and the joint tenancy was for convenience. (See: community property, title)

Copyright © 1981-2005 by Gerald N. Hill and Kathleen T. Hill. All Right reserved.

joint tenancy

concurrent ownership of land (or other property) by two or more persons having identical interests with the quality of survivorship (i.e. if one co-owner dies the property automatically vests in the surviving joint tenant(s)).
Collins Dictionary of Law © W.J. Stewart, 2006
References in periodicals archive ?
(39) Tenancies in common developed as the natural consequence of the stringent unity requirements for joint tenancies; if a transfer of property lacked one or more of the unities required for a joint tenancy, a tenancy in common could form.
1932) (chronicling origin and development of joint tenancies).
third option, are very similar to joint tenancies. Like joint tenancies,
recognized joint tenancies even when one of the unities is missing.
It is axiomatic that with spousal joint tenancies, one-half of the date of death value of the property is included in the estate of the first spouse to die.(6) Given this immutable rule, the survivor's basis would be determined as shown in the following example.(7)
This "one-half inclusion rule" for spousal joint tenancies is simple compared to the inclusion rule for non-spousal joint tenancies, which is covered next.
An exception also was included in the proposed regulations for joint tenancies between spouses created on or after July 14, 1988, where the donee spouse was not a United States citizen.
Non-spousal joint tenancies also generally do not provide for coordination of affairs at death, such as for payment of taxes and administration expenses.
Pursuant to IRC Section 2040(b) joint tenancies between husband and wife are treated as if equally contributed to by both spouses.
The fact that qualified disclaimers are now possible for joint tenancies with right of survivorship and some tenancies by the entirety is good news for clients who may otherwise find themselves taking unused unified credits to their graves.
In McDonald, the taxpayer/wife and her deceased husband had owned land under joint tenancies created before 1977.
While these cases have no relevance today for husband and wife joint tenancies, some of the rulings may have relevance in the case of nonspousal joint tenancies.

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