The Differences Between Joint Tenants with Survivorship and Tenants in Common
Updated: Mar 25
The main difference between joint tenancy, and tenancy in common, is: If parties own property in joint tenancy, then, when one owner dies, the other owner receives the property. In tenancy in common, when one owner dies, the other owner does not take the property; rather, the deceased owner’s heirs inherit the deceased owner’s share.
Their distinctions will be considered in further detail, below:
Joint Tenancy with Right of Survivorship (JTWROS)
Joint tenancy has what is called “right of survivorship”, where, if one owner dies, the surviving owner takes all of the property, immediately upon the other owner’s death. No court action is necessary for the surviving owner to take the property. All that the surviving owner needs to do, is, file the deceased owner’s death certificate, along with an “Affidavit of Surviving Joint Tenant” with the county clerk of the county in which the property is located.
Because it is easy to transfer property held in joint tenancy after one owner dies, joint tenancy is often a very attractive option for people planning their estate. Many estate planning attorneys – myself included—will advise clients to place their property in joint tenancy with the person whom they want to inherit their property. Then, the transfer, after death, can be accomplished easily and quickly. For example:
X gives property to A & B as joint tenants with right of survivorship.
Then, after A or B dies, the survivor will automatically take all of the property. All that the survivor (A or B) needs to do, is file an affidavit of surviving joint tenant, in the county clerk's office. The survivor is then the record owner of the property.
If one party owns property, that person may convey the property to himself and another person as joint tenants. For example:
A gives property to A & B as joint tenants with right of survivorship.
Also, if two parties own property as tenants in common (where they don’t have right of survivorship) the parties can convey the property to themselves as joint tenants.
A & B give property to A & B as joint tenants with right or survivorship.
Suppose you and another person own property as tenants in common, and you want to plan your estate so that upon your death, the other owner can take the property without going to court. You and the other owner can convey the property to yourselves as joint tenants with right of survivorship.
Other features of joint tenancy:
· Any number of people can hold property together as joint tenants. For example, if five people own property as joint tenants, then the remaining four people take possession of the property upon the death of any one of the owners. These four people will then co-own the property as joint tenants; when another owner dies, the remaining three will take the property, and so on, until the last owner dies.
· If persons own property together as joint tenants, one party can convey his interest to another person, without the consent of the other joint tenant. Then, the original joint tenant, and the new owner, own the property together as tenants in common.
If A & B own property as joint tenants
A can convey his interest to C.
Then, B and C own the property together as tenants in common.
A does not need B’s consent to convey away his interest; A can do with his interest as he pleases.
· Persons do not have to be related to each other to hold property together as joint tenants.
Intention to create joint tenancy must be clear
The Oklahoma Supreme Court has held that to create a property interest in joint tenancy, the deed transferring the property to the co-owners must show a clear intention to establish right of survivorship. There are no specific “magic words” that must be in the deed. But, if the deed does not show a clear intention to create joint tenancy with right of survivorship, then, there is only a tenancy in common.
How to Transfer Property Held in Joint Tenancy, After One Joint Tenant Has Died
If you owned property in joint tenancy, and the other joint tenant has died, all you need to do, is fill out an "Affidavit of Surviving Joint Tenant." Take the affidavit down the the county clerk's office for the county where the land is located. Give the affidavit, along with the deceased person's death certificate, to the county clerk. For a free copy of an affidavit of surviving joint tenant form, along with instructions for filling it out, click here.
Tenancy in Common
If parties hold property as tenants in common, then, neither party has a right of survivorship. Instead, the deceased owner’s heirs inherit the property, and these heirs will then own the property, together with the original owner, as tenants in common. Also, the heirs will have to go to probate court, in order to gain title to the property.
To see what the process of going to probate court is like, click here.
If the deceased owner had a will, the probate court will distribute the property to whomever the owner named in his will. If the deceased owner had no will, the court will distribute the property to whichever of the owner’s relatives are entitled to inherit, under the Oklahoma Intestate Succession Law.
A & B own property as tenants in common.
A’s heirs (either by will or intestate succession) are C & D.
C & D will have to go to probate court. C & D won’t actually be able to take the property until the judge signs the probate decree.
After the judge signs the probate decree, B, C, & D will own the property together as tenants in common.
In tenancy in common, as with joint tenancy, any number of persons may hold the property together. Also, any owner may transfer his share of the property to anyone else, without the consent of the other owners. Also, the parties do not need to be related to one another to hold property as tenants in common.
A third type of joint ownership – tenancy by the entireties
Tenancy by the entireties is similar to joint tenancy, in that the parties have right of survivorship. When one party dies, the other party automatically takes title to all of the property. The survivor does not need to go to probate court. The survivor need only file the deceased owner’s death certificate, along with an affidavit of survivorship, with the county clerk’s office.
Two differences between tenancy by the entireties, and joint tenancy:
Only a married couple may own property as tenants by the entireties.
If spouses hold property as tenants by the entireties, one spouse may not convey his/her interest to anyone else, unless the other spouse also signs the deed conveying the property.
Plan your estate: consider joint tenancy
If you are planning your estate, it’s definitely a good idea to think about placing your property in joint tenancy with the person whom you would like to inherit the estate. Probate court can be time-consuming and costly, and joint tenancy (or tenancy by the entireties) can help you avoid probate. The Persaud Law Office is willing to help you arrange your property so that your heirs are well taken care of. If you would like to speak with us, contact us for a free consultation.