When real property is owned by multiple people, property law refers to it as a concurrent estate. The co-owners, or co-tenants, are commonly categorized as either joint tenants or tenants in common.
Tenants in Common
In Arizona, tenancy in common is the default classification for married couples seeking joint ownership. The property can be divided evenly, or the owners can control differing shares if needs be (e.g. two business partners own 25% each, and the third owns 50%).
The tenancy in common agreement is best for unrelated parties because it allows an owner to sell his or her interest in the property without the consent of the other owners, leaving you free to mortgage, transfer, or assign your share to another party. A co-owner is also free to decide what happens to their share of the property when they die, and can indicate their wishes in their will.
This form of joint property ownership requires that each party have an equal share. To initiate joint tenancy, property law dictates four requirements (also known as “unities”) be met:
- Unity of time: All co-owners need to take ownership of the property at the same time.
- Unity of title: All co-owners need to assume the title by the same “instrument” (a document that transfers property), such as a will or deed.
- Unity of interest: All co-owners need to hold an equal share of the property. It doesn’t matter how much each party contributes to the purchase; even if one owner paid 100% of the cost, the non-contributing co-owners would still hold equal interest in the property.
- Unity of possession: All co-owners have an equal right to possess and use the entire property, regardless of what percent of the property they own.
If there are only two co-owners and one of them sells their share, the joint tenancy will be broken, and the new owner can either initiate a new joint tenancy, or they can opt for a tenancy in common. If there are three or more co-owners and someone sells their share, the joint tenancy will remain between the original owners, and the new owner will join as a tenant in common.
Joint Tenancy With Right of Survivorship
Adding a right of survivorship designation to joint tenancy (abbreviated as JTWROS) is typically favored by married couples and family members because it simplifies the transfer of ownership when a co-owner dies. Rather than going through probate, the property can automatically transfer into the surviving co-owner’s name.
By skipping probate, the decedent’s share of the property would not be included in their estate, meaning it would lower their risk of qualifying for estate taxes. Also, the estate’s creditors would have no claim against the property. Even if the estate is insolvent, none of the decedent’s debts, liabilities, or bills would transfer with the property.
The ease-of-transfer with JTWROS comes at a cost, though. In order for one of the joint tenants to sell their share of the property, they would need the consent of all other joint tenants. Also, none of the co-owners have the ability to direct their share to any beneficiaries in their will or revocable living trust. The decedent’s share will always pass to the surviving owners, regardless of the decedent’s wishes or instructions.
How to Take Ownership of Joint Property After a Co-Owner’s Death
Since property held in joint tenancy with right of survivorship skips probate, most financial institutions simply require a copy of the death certificate to transfer the property to the surviving co-owners. Property owned as tenancy in common would require an executor with Letters Testamentary from probate court to order the transfer.
Potential Pitfalls of Joint Tenancy With Rights of Survivorship
Many aging or ailing parents add one of their adult children to their account as a joint tenant with right of survivorship so the child can direct the parent’s assets before and after their death without a power of attorney. While this certainly simplifies things, it’s possible to unintentionally disinherit intended beneficiaries in the process.
If, for example, there are four siblings but only one is a joint tenant with right of survivorship, the property will only pass to that sibling, regardless of the directions in the parent’s will. If the parent wishes to co-own property with their children to bypass probate or provide ease-of-access, it’s best to include all intended beneficiaries as joint tenants with right of survivorship.
The same situation can also give rise to estate tax and gifting problems. In the previous example, let’s say the sibling understands the mistake and is willing to distribute the asset(s) among the other beneficiaries as intended in the decedent’s will. Unfortunately, the property held in joint tenancy has now transferred to the co-owner’s estate, meaning that any transfers to the intended beneficiaries would be subject to the IRS’s annual gift tax exemption.
Any amount over $14,000 per person would need to be reported to the IRS, and would count against the joint tenant’s lifetime estate tax exemption. This isn’t an issue for small- or medium-sized estates, but for individual estates worth more than $5.49 million, or for joint estates worth more than $11 million, the estate transfer may be subject to a tax of up to 40%.
Setting Up a Joint Tenancy With Right of Survivorship With a Minor
If the joint tenant with right of survivorship is a minor and the account is intended to be used for the minor’s benefit, a court-supervised guardianship or conservatorship is required. To get around that, it may be a better idea to establish a revocable living trust instead. That way, if the account is owned by the trust, the trust can provide for the minor without the hassle of guardianship or conservatorship.
Inheriting the Decedent’s Debt
It’s a common misconception that a joint tenant with right of survivorship automatically inherits the decedent’s debt when taking over the property. While a surviving spouse or cosigner would be responsible for the debt, a third party—even kin—would not inherit those obligations with the property transfer.
For long-term peace of mind, contact us to set up a consultation today. We look forward to helping with your will and other estate planning needs.
Call Arizona Estate Attorney Dave Weed at (480) 467-4325 to discuss your case today.
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