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 survivor.
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.
The joint tenancy deed was frequently used and was quite common in feudal England. Joint tenancy still plays a role in our current legal system and as with much of our current real estate law, this legal concept has been handed down to us from the English common law.
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. This is because of the right of survivor. The right of survivor preserved feudal property holdings until the death of the last survivor. Therefore, .
Today in states like California the presumption has been abrogated and most states now require that joint tenancy be created by a writing that expressly declares an intention to create this type of tenancy.
The joint tenancy right of survivor operates automatically and therefor it is superior to other forms of tenancy when the desire is to transfer property to the survivor When one tenant dies, the entire estate automatically belongs to the surviving tenant.
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. It passes automatically, by right of survivor, 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.
Should only one surviving joint tenant remain, ownership of the property becomes one 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.
Death of a joint tenant is typically established by recording an acknowledged affidavit of death that describes the real property and has attached a certified copy of the death certificate attached.
The recorded document is 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.
A joint tenancy deed 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.
Learn more about real estate. Stop by the website of attorney Mitchell Reed Sussman where you can find out all about joint tenancy deeds and what they can do for you.
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