Joint Tenants With Rights of Survivorship Vs. a Will

Written by erika johansen
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Joint Tenants With Rights of Survivorship Vs. a Will
Joint tenancy interests generally cannot be devised by will. (signing a contract image by William Berry from Fotolia.com)

Joint tenancy is a type of concurrent estate, meaning ownership of property that is shared among multiple individuals. Joint tenancy interests generally survive with the remaining tenants, and so cannot be passed on by will. However, concurrent estate law can vary between jurisdictions; those with legal issues regarding a joint tenancy should seek legal counsel.

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Joint Tenancy Rights

Each joint tenant is empowered to possess the entirety of the property but cannot exclude the other tenants. Creation of a joint tenancy requires that all tenants receive their ownership interest at the same time, by the same instrument of title, and that all of the interests be of identical type, duration, and rights regarding the property. Should one joint tenant sell his interest, the remaining joint tenants will retain their respective interests, while the buyer will usually take his interest as a tenant-in-common.

Right of Survivorship

Joint tenancy carries a "right of survivorship", which means that when one of the joint tenants dies, his interest in the property vanishes and the remaining joint tenants keep an undivided right in the property. For instance, if A, B and C are joint tenants, and C dies, now A and B are joint tenants of the property. Due to the right of survivorship, joint tenants cannot leave their property interest to someone else by means of a will or intestate succession. Special circumstances may create exceptions to this rule, as detailed below, but such exceptions are rare.

Probate

A joint tenancy is a non-probate interest. Upon the death of a joint tenant, his interest is automatically subsumed back into the joint tenancy and held by the remaining members. Because nothing is being "passed on," as happens in a will situation, there are no assets to put through the process of probate. However, the joint tenancy situation may be subject to other legal requirements, and therefore more complicated, in cases in which two spouses held property as joint tenants before one of them died.

Simultaneous Death

When all of the tenants in a joint tenancy die at the same time, the law has established special rules for disposition of joint tenancy property. Many jurisdictions hold that when two joint tenants die simultaneously, the joint tenancy is severed (legally ended) and half of the property goes to each deceased joint tenant's estate (which means that the halves of the property could theoretically be devised by each joint tenant's will.)

Slayer Statutes

Most jurisdictions have some form of "slayer statute," a statute that prohibits someone who participated in killing another from profiting by that individual's death. In a situation in which one joint tenant helps to kill another, most jurisdictions will sever the joint tenancy and give the slayer no right of survivorship; in this case, the deceased's portion of the tenancy may pass by will or intestate succession. However, the slayer will usually retain his own proportional interest in the property.

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