Sep 18, 2023 Joint Tenants with Right of Survivorship
Most people know that more than one person can share property ownership in New York. Under the law, there are three ways in which multiple parties can own a single piece of property.
- Joint Tenants with the Right of Survivorship (JTWROS)
- Tenants by the Entirety (TE)
- Tenants in Common (TC)
This blog post explains what a Joint Tenancy with a Right of Survivorship is and how it differs from the other methods of holding title to property.
Each property owner’s rights relative to other owners are determined by the nature of the title they hold. The distinction between these ownership interests has a significant impact on how a person’s property is passed on at the time of their death.
Let’s look at the features of a joint tenancy first. This type of ownership is often used by experienced estate planners to ensure that real or personal property and assets will pass to the joint tenant without the need for any courts or lawyers. As you will see when looking at the alternative forms of title ownership, each of them presents some limitation for purposes of estate planning.
Joint Tenants with Right of Survivorship
Each party to a joint tenancy has an equal and undivided interest in the property. An undivided interest means that, among two joint owners, each has a 50 percent interest in the whole property. If one of the joint tenants sells their interest in the jointly held property, the joint tenancy is extinguished and is converted into a “tenancy in common.”
One of the most important features of a joint tenancy is called the right of survivorship. This is the right of joint tenants to obtain full ownership of the jointly held property upon the death of the other joint tenant. When two people own a piece of property as joint tenants, the death of one of the owners automatically creates sole ownership of the property in the surviving owner.
The surviving joint tenant does not need to become involved in a probate process. No legal documents or court filings are needed to secure the surviving joint tenant’s sole interest in the property. Full ownership is vested in the survivor at the moment their joint tenant dies. If more than two people own a property as joint tenants, the last to survive will take full ownership by operation of law.
For a joint tenancy to be formed, the parties must obtain their ownership interest through the same instrument, deed, or certificate of title. In New York, if two or more people acquire property together, the law automatically presumes the property is held as tenants in common. If they wish to be joint tenants with rights of survivorship, the purchasers must expressly specify that fact in the deed and in all documents related to the transaction.
People often own real estate with another person as joint tenants. Joint tenancies with rights of survivorship are also commonly used in bank accounts and other financial holdings.
How Does Joint Tenancy Differ from Other Methods of Ownership?
Now let’s look at how a joint tenancy with right of survivorship differs from the two other types of shared property ownership. The owners’ rights regarding their ability to sell the property as well as the manner in which the ownership transfers to others when the owner dies change drastically with each different form of title.
Tenancy by the Entirety vs. Joint Tenancy
A tenancy by the entirety is a type of joint ownership exclusively available to married couples. The difference between tenancy by the entirety and other forms of shared tenancies is the inability of tenants by the entirety to sell their interest in the property without the consent of the other tenant. This need for mutual consent also prevents one of the spouses from mortgaging the property without their partner’s agreement.
The inability of one tenant by the entirety to sell their interest in the property without the consent of the other party originated as a means of protecting the property of a married couple from one of the spouse’s individual creditors. No creditor of only one of the spouses can enforce a judgment lien on the property.
If the spouse who owes the debt predeceases the innocent spouse, the creditor’s lien is extinguished and the surviving spouse takes the property free of the creditor’s claims. If the innocent spouse dies first, then the creditor may enforce the lien against the debtor spouse, subject to the value protected by the New York homestead exemption. The lien would also need to be less than 10 years old unless the creditor renews the lien for an additional 10 years. After 20 years, the lien is unenforceable in New York.
Tenancies by the entirety also carry the right of survivorship for the surviving spouse. Again, these survivorship benefits protect the surviving spouse from delays and legal expenses that could otherwise arise by requiring the property to pass by probate in the New York Surrogate’s Court.
Tenants in Common v. Joint Tenancy
The third type of property ownership is tenancy in common. Unlike the joint tenants and tenants by the entirety, no right of survivorship exists for tenants in common. Instead, each tenant in common owns only a divided part of the whole property. They are not required to own equal parts of the property, as is the case with the joint tenants and tenants by the entirety.
A single piece of property may be held by any number of parties as tenants in common. Each tenant in common may own a different percentage of the property. Because each of their ownership interests entitles them to a particular portion of the whole property, they may sell their interest in the property without the consent of the other tenants in common.
Since tenants in common do not enjoy the right of survivorship upon the death of another of the tenants in common, the decedent tenant in common’s ’s ownership interest passes through probate to their heirs at law if the decedent made no last will. If they did leave a will, the property interest would pass through the probate process to the person(s) identified as the devisee’s in the will.
Joint Tenancy Risks to Consider
One of the disadvantages of owning a property with another person as a joint tenant is the fact that the entire property can be reached by either one of the owners’ creditors.
In the context of a joint bank account, either of the joint owners may use the entire account’s balance without the other account holder’s permission unless the account requires dual signatures for all transactions.
Finally, a person owning a property as a joint tenant may not convey their interest to someone in their will.
Is Joint Tenancy with Right of Survivorship Right for You?
Experienced estate planning attorneys at Ely J. Rosenzveig & Associates provide valuable counsel to individuals and families seeking to secure their assets and property in the most advantageous and tax effective manner for their survivors.
Whether joint tenancy with rights of survivorship is a beneficial strategy for you and your family depends on the nature of your assets and your goals for the future. While joint tenancies enable property and assets to be transferred without the costs and inconvenience of probate proceedings upon the death of one owner, your individual circumstances might mean an alternative approach will achieve the best results for yourself and those you wish to benefit.
Taking steps to protect your family from unnecessary taxes, legal fees, and probate court expenses is easier than you might think. The attorneys and staff at Ely J. Rosenzveig & Associates are knowledgeable professionals who devote our law practice to helping our clients establish effective plans to meet their immediate and future estate planning needs.
Contact Ely J. Rosenzveig & Associates for Your Estate Planning Needs
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