What is joint tenancy?
“Joint tenancy” is one of the ways that people may own property together. While anyone can generally own property together by tenancy in common, there are certain requirements which people must meet if they want to jointly own property as a joint tenancy. While each state has its own laws specifically outlining these requirements, there must generally be four so-called “unities:” (i) there must be a unity of time, which means that each of the joint tenants received their ownership rights at the same time; (ii) there must be a unity of title, which means that each of the joint tenants received their ownership rights from the same document (e.g., from one deed, one contract, etc.); (iii) there must be a unity of interest, which means that each of the joint tenants must own an equal share of the property (so if three people own the property, they each must have a one-third interest in the property) and they must own the property for the same duration of time; and (iv) there must be a unity of possession, which means that each of the joint tenants must have the same right to occupy, use and enjoy the entire property and have a duty not to interfere with the other joint tenants’ ability to occupy, use and enjoy the property.
Unlike property owned by a tenancy in common, property owned by joint tenancy may be subject to survivorship rights (in some states this is automatic, in other states, the deed or document creating the joint tenancy must explicitly state that there are survivorship rights). When there are survivorship rights, this means that when one of the joint owners dies, his or her shares are automatically passed to, and split evenly by, the other joint owners. Thus, property which is owned by joint tenancy and subject to survivorship rights is not part of the probate estate, because when one of the owners dies, it does not matter what is in his or her will, or what the state intestacy statutes say. In fact, if a joint tenant’s will says that his or her interest in the property should pass to his or her son, the son will be out of luck as the deceased parent’s property rights would immediately transfer to the other joint tenants upon the father’s death.