What Are the Advantages and Disadvantages of Joint Tenancy?
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Joint tenancy is one type of concurrent ownership in which two or more individuals own the property simultaneously. Joint tenancy provides a number of benefits to co-owners. However, it also poses certain risks.
Joint tenancy is most associated with its right of survivorship. This means that if one of the owners dies, his or her share passes to the other owners. Each co-owner has the right to use and enjoy the property.
To form a joint tenancy, certain requirements must be met. Joint tenancy usually requires four unities: time, interest, title and possession. This means that the owners must become joint tenants in the same deed or instrument at the same time, have an equal ownership interest and take possession of the property at the same time.
Owning property as joint tenants carries with it certain advantages. Some of these advantages include:
Ability to Avoid Probate
If the co-owner who died owned little else at the time of his or her death or disposed of assets through a trust, beneficiary designation forms and payable-on-death designations, having a joint tenant with the right of survivorship may allow an individualís estate to avoid probate. Many states have small estate statutes that allow a family to bypass the formal process when the probate estate is under a certain value, such as $100,000. There is often an exclusion for estates that contain real property. However, since the property interest transfers at death, the individual does not own such property at death.
Rights to Rent and Profits
Joint tenants are generally entitled to a share of the rents and profits that the property receives.
Right to Survivorship
Owning an asset as joint tenants allows the other tenant to receive the decedentís share at the time of death. This often involves a process that is automatic and requires little or no paperwork to transfer property.
Although there are number of advantages to owning property as joint tenants, there are also several disadvantages.
Exposure to Creditors
In some cases, one of the joint tenantís creditors can force a sale of the property, leaving the other joint tenants exposed to such risks even if they did not benefit from the debt of the other joint tenant. Issues can arise if a joint tenant files bankruptcy, is sued or is going through a divorce. A sale may be forced in order for the joint tenant to pay off a debt.
Joint tenants generally have greater responsibilities related to the property than owners in severalty. They must pay their share of taxes, mortgage payments and assessments. They must also complete and pay for their proportionate share of those repairs and maintenance issues that are necessary. If they cause waste to the property, they may be required to compensate the other joint tenants.
Lack of Inheritance Rights
Some people may purchase property with the intent to live out their life in the home and then provide it to their children or loved ones at the time of their death. However, joint tenants do not have the right to transfer their interest after their death. They simply cease owning any portion of the property. This is true even if a personís will states otherwise.
Lack of Freedom
When a person owns property with another individual as joint tenants, he or she must get permission from the other joint tenants to make certain arrangements regarding the property. For example, he or she may need permission to get a mortgage on the home or to transfer his or her share to someone else. This can be difficult if joint tenants do not agree or get along.
Alternatively, a person may petition a court to partition the property by forcing a sale or by physically splitting the property so that the property is no longer owned in equal shares.
In some cases, changing property from that owned in severalty to joint tenancy may make gift taxes arise. An exception to this is if the joint tenants are United States citizens who are married to each other.
A real estate lawyer with experience in concurrent forms of ownership can discuss a clientís needs to determine whether joint tenancy will or will not best serve the client. Other forms of concurrent ownership may be discussed, such as tenants in common and tenants by the entirety.
Disclaimer: While every effort has been made to ensure the accuracy of this publication, it is not intended to provide legal advice as individual situations will differ and should be discussed with an expert and/or lawyer.