- For Attorneys
Joint tenancy is a form of ownership by two or more individuals together. It differs from other types of co-ownership in that the surviving joint tenant immediately becomes the owner of the whole property upon the death of the other joint tenant. This is called a "right of survivorship." State law, which varies by state, controls the creation of a joint tenancy in both real and personal property, such as houses, bank accounts, and corporate stocks. Generally, for transfers to two or more persons who are not husband and wife, the deed or conveyance must expressly state an intention to create a joint tenancy by noting that the property will be held not as tenants in common but as joint tenants with rights of survivorship. Joint tenancy property passes outside of probate, however, it may be severed so that the property becomes part of one person's estate and passes to that person's heirs. Each joint tenant has an equal, undivided interest in the whole property. Each joint tenant may enter onto, take possession of the whole, occupy, and use every portion of the common property at all times and in all circumstances. All joint tenants, and their spouses, must sign deeds and contracts to transfer or sell real estate. The right of survivorship can be eliminated by ending the joint tenancy before a tenant's death through a process called "severance". Severance means that the joint tenants disrupt the unity of their interests in the property through mutual agreement or unilateral action so that they become tenants in common instead of joint tenants. A joint tenant may convey his or her interest to a third party, depending on applicable state law. This conversion would in effect terminate the joint tenancy and create a tenancy in common.
Probate is a legal proceeding by which a deceased person's property is distributed to the rightful heirs and/or beneficiaries. Probate proceedings are governed by the law of the state where the deceased person resided at the time of death and by the probate laws of any other state where the property was owned. The main purpose of probate is transferring title of the decedent's property to the heirs and/or beneficiaries. Probate also allows for collection of taxes due and payment of outstanding debts. The term "probate" refers to a "proving" of the existence of a valid will or determining and "proving" who one's legal heirs are if there is no will. All property of a decedent may not be subject to the probate process. Life insurance, retirement accounts, real estate held as joint tenants with right of survivorship and other joint tenancy property can pass directly to the appropriate beneficiary automatically. The involvement of the court to transfer such property is not required.
Generally, creditors may not make claims against property owned by joint tenants with the right of survivorship for a deceased joint tenant's debts, however, federal tax liens may be an exception. According to the Internal Revenue Manual 18.104.22.168.2.2., in most states, if the individual, against whose property a federal tax lien attaches, dies before any of the other joint tenants, then the lien ceases to attach to the property. However, if the same individual is the last survivor of the joint tenants, the tax lien then attaches to the entire property.
The following is a Georgia statute:
44-6-190. (a) Deeds and other instruments of title, including any
(a) Deeds and other instruments of title, including any instrument in
which one person conveys to himself and one or more other persons, any
instrument in which two or more persons convey to themselves or to
themselves and another or others, and wills, taking effect after January
1, 1977, may create a joint interest with survivorship in two or more
persons. Any instrument of title in favor of two or more persons shall be
construed to create interests in common without survivorship between or
among the owners unless the instrument expressly refers to the takers as
"joint tenants," "joint tenants and not as tenants in common," or "joint
tenants with survivorship" or as taking "jointly with survivorship." Any
instrument using one of the forms of expression referred to in the
preceding sentence or language essentially the same as one of these forms
of expression shall create a joint tenancy estate or interest that may be
severed as to the interest of any owner by the recording of an instrument
which results in his lifetime transfer of all or a part of his interest;
provided, however, that, if all persons owning joint tenant interests in a
property join in the same recorded lifetime transfer, no severance shall
(b) Neither this Code section nor Code Section 44-6-120 shall be
construed to repeal, modify, or limit in any way either Code Section
14-5-8, relative to joint tenancy of shares and securities of
corporations, or Article 8 of Chapter 1 of Title 7, relative to
multiple-party accounts in financial institutions, or any other law
relative to multiple-party accounts in financial institutions. Neither
this Code section nor Code Section 44-6-120 shall apply to any document,
transaction, or right to which Code Section 14-5-8 applies or to
multiple-party deposit accounts in any financial institution.