WHAT DOES "JOINT TENANCY" MEAN?
March 30, 2021
In real estate documents, such as Deeds, and other legal documents, such as vehicle titles and bank statements, we often find the term, "Joint tenancy" or sometimes "Joint tenancy with the right of survivorship". This is sometimes abbreviated as "JTWRS". The term signifies a form of ownership.
In no way does this mean that you are a "tenant" or a "renter".
What it does mean is that two or more owners of property are sharing ownership and control of the property. If two owners, each is an owner of an "indivisible" 50 % share of the property. If it is a vehicle each has the right to sell, especially if "or" is between their names. Arguably, if "and" is between their names they must both agree to sell, but this may not be the case. In the case of a bank account, either could withdraw all the money or close the account. In the case of real estate, the title company would not allow one to sell without the consent of the other. However, one owner may file a court action for sale of the property and partition of the proceeds among the joint owners.
The creditors of any of the joint owners may attach the property for payment of a debt so this is a risk of joint ownership with a person who owes a debt.
For estate planning purposes, joint ownership provides, by Arizona law, for the immediate transfer of the interest of a deceased person to the survivor or survivors. This is often done by the recording of a certified copy of a death certificate with the county recorder in the county where the property is located. Thus no probate is required and the expense of a probate is spared.
"Joint tenancy" should not be confused with "Tenancy in common" which is another form of ownership by two or more people. In "tenancy in common", similar to "joint tenancy", each owner has an indivisible percentage interest in the whole property. However, unlike "joint tenancy", there is no automatic transfer to the surviving owner(s) upon the death of one owner. Instead, the deceased owner's share is transferred to their heir(s) or beneficiaries under their will or trust. In other words, the surviving owner will have a new "partner" who steps into the shoes of the deceased person. This could result in a very uncomfortable situation.
One of the first court cases I handled as a young lawyer involved a property owner in an unhappy marriage. He had married late in life and added his spouse as a "joint tenant" owner of his house. Without his knowledge, she saw a lawyer who "broke" the joint tenancy, effectively converting it into a tenancy in common. Now she and her husband both owned the house, but her share would go to the heirs she specified in her will (which did not include her husband). In fact, her heirs were her relatives, who her husband did not like. Unfortunately, the wife passed away, which is when husband first became aware of what had happened to the ownership of "his" house. He now owned 50% and his "surprise" new owners were his despicable relatives. He challenged the will in court, but it is very difficult to contest a will and, despite his best efforts and expert testimony, he was unable to meet the burden of proof to prove that the will was the result of an insane delusion. An appeal to the Court of Appeals upheld the findings of the trial court so the property owner had no further legal recourse.
In conclusion, be careful how you title your property and get the legal help you need BEFORE you have a problem that could have been easily avoided by using the correct legal language. Your family will thank you for your thoughtful estate planning.