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The Joint Tenancy Deed Avoids Probate and Saves Money

12th April 2011
By Mitchell Sussman in Real Estate Law
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The joint tenancy deed is one of the best tools to transfer real estate between spouses, partners and heirs. Its principal characteristic and its advantage over holding title as a tenant in common, is that a joint tenancy deed transfers title immediately upon the death. This is known as the right of survivorship.

A joint tenancy in property consists of an estate owned jointly in equal undivided shares by two or more persons. For example, it can be between a husband and a wife, a father and his sons, brothers, sisters or any combination of relatives, partners or friends.

The ownership interest of joint tenants, whether there be two, three or more such tenants is regarded by law as constituting a unity with each co - tenant vested with title to an undivided equal share of the entire property.

As with much of our current real estate law, this legal concept has been handed down to us from the English common law. The joint tenancy deed is one of those early English common laws that still plays a vital part in our current legal system.

Early English common law favored its creation over other forms of tenancy, such as a tenancy in common because of the right of survivorship. In the bygone days of merry old England, the right of survivorship preserved feudal property holdings until the death of the last survivor. Therefore, under early English common law any conveyance or transfer of real estate to two or more persons presumptively created a joint tenancy unless expressly declared otherwise.

Modernly, in states like California the common law presumption has been abrogated and most states now require by statute that it be created by a writing that expressly declares an intention to create this type of tenancy.

As noted above, the single most important feature that distinguishes it from all other forms of co-tenancy, except community property is right of survivorship.

When one tenant dies, the entire estate automatically belongs to the surviving tenant or tenants. On the tenant's death, the surviving tenant or tenants continue in the ownership of the entire property which passes to the surviving tenant or tenants by operation of law.

The beauty of this automatic passing of title, is that on death, the interest of the deceased joint tenant is not a part of his or her estate and does not pass to heirs or devisees. It passes automatically, by right of survivorship, to the other joint tenant or tenants that appear on the deed. Furthermore, no will or trust executed by the deceased joint tenant can affect the joint tenancy. Thus a deceased joint tenant cannot dispose of it by will, and no probate is necessary to transfer the joint tenancy property.

In the situation where only one surviving joint tenant remains, ownership of the property becomes one in severalty and the property becomes a part of the estate of the surviving joint tenant who can then transfer the property during his or her life time or upon their death however they choose.

The fact of death of a joint tenant is typically established by recording an acknowledged affidavit of death that describes the real property and has an attested or certified copy of the death certificate attached.

The recorded document is prima facie evidence of the death of the deceased joint tenant and perfects title in the survivor without need for the property to go through a time consuming and often costly probate proceeding.

As you can see, the joint tenancy deed and the right of survivorship that goes along with it is a valuable tool in any estate plan because it accomplishes the transfer of property without the necessity of cumbersome, time consuming and costly court proceedings.

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