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Joint Tenancy with Right of Survivorship

Joint tenancy with right of survivorship is one of the most popular ways to arrange estate planning because it covers almost all types of property you can own and typically helps avoids the probate system. By avoiding the probate process, you can save time, money, and any legal hassle for yourself and your loved ones after your death. Read on to learn more about joint tenancy with right of survivorship and how you can avoid probate.

What Is Joint Tenancy With Right of Survivorship?

Joint tenancy with right of survivorship is a type of property ownership that allows multiple people to share property with equal rights. The "right of survivorship" refers to the right of the surviving joint owner, who will automatically inherit the share of joint tenancy property owned by a deceased joint owner. The majority of states require the share of property to be equal between joint owners.

For example, your brother, your sister, and you equally own a property in joint tenancy with rights of survivorship. If your brother passes away first, you and your sister will each own 50 percent of the property because your brother's share of the property automatically passes to the remaining surviving joint owners. If your sister passes away after, you will own the whole property as a sole owner.

How to Create Joint Tenancy With Right of Survivorship

At common law, four unities are required to create joint tenancy with right of survivorship:

  1. Unity of time: The property interests of all joint owners must be conveyed at the same time.
  2. Unity of title: The property interests must be conveyed in the same instrument.
  3. Unity of interest: The property must convey the same interest to the joint owners.
  4. Unity of possession: The property must convey a common right of possession or enjoyment.

 

If any one of these unities is not met, there is no valid joint tenancy with right of survivorship. The language in the legal document of creating joint tenancy with right of survivorship must be clear because some states consider "joint tenancy" as "tenancy is common," which is a less restrictive type of joint ownership.

Avoiding Probate Process

Probate is a legal process of transferring of property upon a person's death, which is supervised by a probate court. A probate process requires attending the court regularly to properly follow necessary legal formalities, settle any disputes, pay debts and taxes, and transfer and distribute any remaining property. Although it may seem simple, this process can be time-consuming and costly.

To save time and money, there are ways to avoid probate when transferring property. Among several ways to avoid the probate system, jointly owned property with the right of survivorship is one of the most common methods to avoid probate. Upon the death of one joint owner, the surviving joint owner gets the share of property that was owned by the deceased joint owner without probate.

Exceptions to Avoiding Probate

There are some situations in which probate may be unavoidable. First, probate cannot be avoided when the last joint owner dies. The property must go through probate upon the death of the last owner of the joint tenancy property before it can be transferred to someone else.

Though very rare, another unavoidable probate exception is when joint owners die simultaneously. In this situation, each joint owner's share of the joint tenancy property would pass either by the terms of their individual wills or intestate succession.

Get a Free Initial Case Review

There are several methods and requirements to different types of estate planning. Joint tenancy with right of survivorship has its own way of avoiding probate with a few exceptions. If you have any questions or issues with joint tenancy or the probate system, contact an attorney in your area for a free initial case review. Depending on how you manage your estate planning, you can save money, time, and any legal problems.

Next Steps
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