Joint tenancy with the right of survivorship is a popular way to avoid probate. It certainly has the virtue of simplicity. To create a joint tenancy with the right of survivorship, all you need to do is put the right words on the title document, such as a deed to real estate, a car's title slip, or the signature card establishing a bank account.
What exactly is a joint tenancy with right of survivorship (often shortened simply to "joint tenancy")? It's a co-ownership method that comes with the right to take a deceased co-owner's share of the property. If you co-own a piece of property with someone as joint tenants with the right of survivorship, when your co-owner dies, you automatically own their half of the property, and vice versa. (Contrast joint tenancy with a tenancy in common.)
While many use "joint tenancy" interchangeably with "joint tenancy with right of survivorship," and we do so as well in this article, be aware that a few states (such as Texas) have different norms. In situations where you want to be absolutely clear, be sure to include "with right of survivorship."
In the great majority of states, if you and your co-owners own property as "joint tenants with the right of survivorship" or put the abbreviation "JT WROS" after your names on the title document, you not only co-own the property, but you own it in a way that automatically determines who will own it when one of you dies.
A car salesman or bank staffer may assure you that other words are enough. For example, connecting the names of the owners with the word "or," not "and," does create a joint tenancy, in some circumstances, in some states. But it's always better to unambiguously spell out what you want: joint tenancy with right of survivorship.
When Ken and his wife, Janelle, buy a house, they want to take title in joint tenancy. When the deed that transfers the house to them is prepared, all they need to do is tell the title company to identify them on the deed in this way:
Kenneth J. Hartman and Janelle M. Grubcek, as joint tenants with right of survivorship.
There should be no extra cost or paperwork.
Joint tenancy—or a form of ownership that achieves the same probate-avoiding result—is available in all states, although a few impose restrictions, such as the ones summarized below. In addition, one rule applies in every state except Colorado, Connecticut, North Carolina, Ohio, and Vermont: All joint tenants must own equal shares of the property. If you want a different arrangement, such as 60%-40% ownership, joint tenancy is not for you.
Alaska: Joint tenancy is not allowed for real estate, but married spouses may own as tenants by the entirety.
Oregon: A transfer to married spouses creates tenancy by the entirety unless the document clearly states otherwise.
Tennessee: A transfer to husband and wife creates tenancy by the entirety, not joint tenancy.
Wisconsin: Joint tenancy is not available between spouses, but survivorship marital property is.
Learn more about tenancy by the entirety, which has many similarities to joint tenancy, but is available only to married couples.
Especially when it comes to real estate, all law is local, so be sure you know your state's rules on what language is required to create a joint tenancy with the right of survivorship. While "as joint tenants with right of survivorship" works in many situations, the specific laws of your state might vary slightly. Joint tenancy deeds can look a little different, depending on your state. If you're not sure, talk to a local real estate lawyer. Here are just a few special state rules.
Michigan: Michigan has two forms of joint tenancy. A traditional joint tenancy is formed when property is transferred to two or more persons using the language "as joint tenants and not as tenants in common." Any owner may terminate the joint tenancy unilaterally (without the consent of the other owner).
If, however, property is transferred to the new owners using the language "as joint tenants with right of survivorship" or to the new owners "and the survivor of them," the result is different. No owner can destroy this joint tenancy unilaterally. Even if you transfer your interest to someone else, that person takes it subject to the rights of your original co-owner. So if you were to die before your original co-owner, that co-owner would automatically own the whole property.
EXAMPLE: Alice and Ben own land in Michigan as "joint tenants with full right of survivorship." Alice sells her interest to Catherine and dies a few years later, while Ben is still alive. Ben now owns the whole property; Catherine owns nothing.
Oregon: Oregon doesn't use the term "joint tenancy"; instead, you create a survivorship estate. The result is the same as with a joint tenancy: when one owner dies, the surviving owner owns the whole property. But technically, creating a survivorship estate creates what the lawyers call "a tenancy in common in the life estate with cross-contingent remainders in the fee simple." (That clears it up, doesn't it?)
South Carolina: To hold real estate in joint tenancy, the deed should use the words "as joint tenants with rights of survivorship, and not as tenants in common," just to make it crystal clear. (S.C. Code Ann. § 27-7-40.)
Texas: If you want to set up a joint tenancy in Texas, you and the other joint tenants might have to sign a written agreement. For example, if you want to create a joint tenancy bank account, so that the survivor will get all the funds, specifying your arrangement on the bank's signature card may not be enough. Fortunately, a bank or real estate office should be able to give you a fill-in-the-blanks form.
Take this requirement seriously. A dispute over such an account ended up in the Texas Supreme Court. Two sisters had set up an account together, using a signature card that allowed the survivor to withdraw the funds. But when one sister died, and the other withdrew the funds, the estate of the deceased sister sued—and won the funds—because the signature card's language didn't satisfy the requirements of the Texas statute. (Stauffer v. Henderson, 801 S.W.2d 858 (Tex. 1991).) More recently, the Texas Supreme Court ruled that a married couple who owned investment accounts labeled "JT TEN" did have survivorship rights, even though they hadn't signed anything stating whether or not the account had a survivorship feature. Holmes v. Beatty, 290 S.W.3d 852 (Tex. 2009). But it's still better to be explicit about your intentions.
Joint tenancy and the different ways of co-owning property can be complicated. If you're dealing with the co-owned property of a loved one who died, and you're not sure how they co-owned it or what the implications are, find a probate attorney to help.