Transferring Property Held in Joint Tenancy

There are many benefits to co-owning real estate with someone else, and that includes benefits when it comes to probate. Joint tenancy real estate avoids probate, making for a smooth transfer of property ownership to the co-owner. These owners are referred to as joint tenants. This is a popular course for couples in particular. There is also "tenancy by the entirety", which really is only an option to married couples in some states, or to couples who are registered domestic partners or who are in a civil union. It operates along much the same lines as joint tenancy.

State Laws on Joint Tenancy Real Estate

If you have joint tenancy property, what happens when one co-owner dies? The surviving owner(s) instantly become the owners if the joint tenancy includes the right of survivorship. In the vast majority of states, each joint tenant has to have an equal share in the property. For example, if three siblings own property in joint tenancy, then that means that each sibling has to have a one-third share in the property. If one of the siblings dies, then the two surviving joint tenants would have a half-interest in the property. The only states where this principle does not apply are Colorado, Connecticut, Ohio, and Vermont.

State laws are a huge factor in how joint tenancy works. That is why it is imperative to consult a local probate attorney if you have questions on this matter. The thing is, in some states, if both spouse's names are on the title deed, then both will be assumed to have joint tenancy. In other states, however, the deed would have to say something to the effect of "as joint tenants" or "JTWROS" after both spouse's names (JTWROS is "joint tenants with right of survivorship").

How do you transfer ownership of this property?

While a surviving joint tenant is instantly made the owner of property when the other joint tenant passes away, you still have to update all the pertinent documents. Every joint tenant's name will be on those documents unless you change them. The survivor should make sure that public records on real estate are brought up to date, and this can be taken care of at the local land records office. So beyond knowing your state's laws, you will need to acquaint yourself with your county's rules. Usually speaking, however, you will need a statement titled to the effect of "Affidavit of Surviving Spouse for Change of Title to Real Estate" or the less cumbersome "Affidavit—Death of Joint Tenant". In some states, you will have to get this statement notarized.

In total then, a survivor joint tenant will likely need to give his or her local land records office:

• The statement, which says that the survivor is the only owner of the property held in joint tenancy, and this has to be signed by the survivor
• A copy of the certified death certificate
• Any other documents mandated by local laws

To understand the laws in your region and how best to create your estate plan, be sure to contact an experienced probate lawyer on our site today!