Joint Estate

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Property owned by two or more people at the same time, under the same title, with the same interest, and with the same right of possession.

Although joint estate is sometimes used interchangeably with joint tenancy, the two terms are not synonymous. Joint estate denotes a broad category of ownership that includes joint tenancy, tenancy in common, and tenancy by the entirety. A more apt synonym for joint estate is concurrent estate, which depicts the simultaneous ownership of property by more than one person.

Joint Tenancy

Joint tenants acquire the same interest in the same property through the same conveyance, commencing at the same time, and each holds the property under the same individual possession. Each owner possesses the entire property by the appropriate designated fraction as well as by the whole, and has the right to enjoy both the fraction and the whole, but shares that right with all other joint tenants. A joint tenancy is created through a simple and straightforward process—for example, through a deed or will.

The principal difference between joint tenancy and other forms of co-ownership is that upon the death of a joint tenant, the surviving tenants have the right to the sole ownership of the property. This right, known as the right of survivorship, exists without regard to the relationship between the tenants. In other words, two people who are not related in any way can be joint tenants, and either will, upon the death of the other, possess all of the deceased's rights of ownership in that parcel of property. The property does not become part of the decedent's estate, and the disposition of the property cannot be changed by will. When one joint tenant dies, the remaining tenants take an increased share of the property, and this process continues until the last survivor owns the entire parcel. That survivor then ceases to be a joint tenant and may do with the property what she wishes, as its sole owner.

Joint tenancy has enjoyed great popularity because it provides a simple mechanism for holding title to property without that title having to pass through probate. The cumbersome nature of certain probate proceedings and the cost and time that they entail provide ample motivation for many people to seek a joint tenancy arrangement. Joint tenancy is often used by a husband and wife who wish, for example, to have their homestead remain under the sole ownership of the surviving spouse when one dies. The property becomes part of a probated estate only when the second spouse dies.

Four unities are necessary for the establishment of a joint tenancy: time, title, interest, and possession. This means that the interests of the joint owners must come into existence at the same time and by the same conveying document, the interests of all tenants must be identical, and each tenant must have an equal right to enjoy the property. Formerly, if any of these unities did not exist or ceased to exist, a joint tenancy was disallowed or extinguished, and a tenancy in common was created. Today, courts tend not to examine the technical existence of the four unities in considering a joint tenancy case. Where it was the clear intention of the parties to create a joint tenancy and where the requirements have generally been met, most courts will find that a joint tenancy exists.

It is still a well-accepted principle of the unities that if a joint tenant conveys his interest in a property to a third party, the third party becomes a tenant in common, while the remaining tenant continues as a joint tenant but no longer enjoys the right of survivorship. The right of survivorship is lost whether or not the conveyor seeks its loss. Thus, since any joint tenant has the inalienable right to sever the joint tenancy by conveying her property to another party, the existence of a joint tenancy is not a complete protection of the right of survivorship. Other problems may arise owing to the joint tenants' inability to control the distribution of the property through a will. In addition, a federal gift tax may be imposed if the joint tenancy was created primarily from the funds of only one joint tenant.

Many states have tended to favor tenancies in common over joint tenancies because a joint tenant may not clearly understand that the property goes to the surviving tenants. Courts differ on the language required to create a joint tenancy. Where a desire to create a joint tenancy is not clearly expressed, courts will often find in favor of a tenancy in common rather than a joint tenancy.

Tenancy in Common

Tenancy in common provides ownership of an undivided interest of the whole but not of the whole itself. It bestows no right of survivorship, and the interest of the tenant in common is freely alienable and will pass to the heirs of the tenant upon the tenant's death. When a sole owner dies without having specified the disposition of the property, the heirs will inherit as tenants in common.

Tenancy by the Entirety

Tenancy by the entirety is similar to joint tenancy in providing the right of survivorship and requiring the four unities. But it is a more restricted type of joint estate that may exist only between a husband and a wife. Each spouse owns the undivided whole of the property so that upon the death of one spouse, the surviving spouse is entitled to the decedent's full share. Neither spouse can voluntarily dispose of his interest in the property, and the tenancy can be created only by will or by deed.

If a conveyance specified a tenancy by the entirety but the grantees were other than husband and wife, some courts have declared that a joint tenancy resulted, whereas others have found a tenancy in common.

further readings

Berger, Michael J. Estate Planning. Vol. 18. Warren Gorham Lamont.

Ritchie, Alford, and Effland. 1977. Decedents' Estates and Trusts. University Casebook series.