Are you or any of your family members owners as joint tenants with right of survivorship? It’s a convenient deed. Avoiding probate for the survivor. But it can definitely cause some problems down the road. The story (which is fictional to demonstrate a common problem with this deed) I’m about to share with you will show you an example of how join tenancy deeds can cause problems.
Now, you maybe asking yourself, what exactly is a joint tenancy deed. A joint tenancy deed is worded like this, “John Doe and Mary Doe, husband and wife, as joint tenants and not as tenants in common with full rights of survivorship, the whole estate to vest in the survivor in the event of the death of either.” Under a joint tenancy deed if one of the joint tenants were to become deceased, it would automatically go to the other joint tenant or joint tenants.
Here is my story. Three cousins decided to get a joint tenancy deed on a property that they inherited from a relative. If any of them were to die the other ones would automatically own the property. Well, this happened a few years ago and then one day one of the cousins decided they had no interest on letting the other cousins receive their share of the property if he were to pass away. That cousin decided to have his share go to his trust. Another cousin thought about it and decided that was a good idea and decided to put his share into a trust. Well, that left one cousin left on the joint tenancy deed. The one cousin that was left on the joint tenancy deed passed away. Since there was no one else on the joint tenancy deed and the last person who was on it passed away, there was actually no property in the joint tenancy deed. Now, the property that was in the joint tenancy deed will need to go through probate since there was no one else on the joint tenancy deed. It is called severing the joint tenancy. I’m sure nobody wants to have to go through doing a probate. Their whole situation could of been resolved with transfer on death deeds. Each cousin would own their 1/3 share as a tenant in common and give a transfer on death deed to pass their share at their death. What the transfer on death deed does is if a person were to pass away the transfer on death deed would transfer the property without probate to whoever the person named as a beneficiary of the transfer on death deed. It does require that the beneficiary file a death certificate and affidavit of acceptance within nine months of death in order to be the owner. There are a lot of options for an estate. Always have a will. Consider using a revocable living trust. Sometimes a joint tenancy can work. Sometimes a transfer on death deed is better.
In Shackelton v. Sherrard, 385 P 2d 898, 1963 (Okla., 1963) the court explained more about joint tenancy: “Although the interests of joint tenants are presumed to be equal, nevertheless, if there is proof of some special agreement between them at variance with the legal presumption of equality, their rights and interests will then be fixed in accordance with their own agreements.” The general rules of law applicable are found in 64 A.L.R.2d, pp. 921-922: “In the ancient language of the law, joint tenants were said to hold per my et per tout, or in plain words, ‘by moiety or half and by all.’ This statement, which of course is strictly accurate only in the case of there being but two joint tenants, serves to indicate the conception of a joint tenancy as one which allows each owner to hold a particular share which he may alienate, while at the same time he and the other or others hold the entire property as by a single ownership. The theoretical peculiarity of a joint tenancy at common law, and also by the law as it still generally prevails, is the coexistence of the four unities, the unity of interest, the unity of title, the unity of time, and the unity of possession, that is to say ‘joint tenants have one and the same interest accruing by one and the same conveyance, at one and the same time and held by one and the same undivided possession.’ The principal practical aspect of a joint tenancy consists in the fact that on the death of one of the joint tenants, no severance of his interest having theretofore occurred, the exclusive title inures to the surviving joint tenant or tenants. ‘From these peculiarities of ownership it follows logically, and also under the law, that joint tenants can terminate the joint tenancy by any act which is consistent with its continued existence, or which operates to destroy its essential unities or one or some of them. So to the extent of the interest affected, and therefore in toto where there are only town joint tenants, a joint tenancy is severed by any act of a joint tenant which operates to destroy one or more of its unities. ‘A severance can occur only during the lifetime of the tenant who would sever, since at the instant of his death the title inures to the surviving tenant or tenants. ***’ Decisions in at least 25 other jurisdictions have announced the rule to be ‘The act of a joint tenant in conveying his interest in the property to a stranger operates to sever that interest from the tenancy so that in the usual case of there being only two join tenants the joint tenancy is completely terminated.’ See 64 A.L.R. 2d, p. 925 and cases cited. Unless. The theory of joint tenancy came to us from the common law. We said in Watkins v. McComber, supra, ‘The common law, as modified by constitutional and statutory law, judicial decisions and the condition and wants of the people, shall remain in force in aid of the general Statutes of Oklahoma.’ As herein before pointed out, a joint tenant can terminate the joint tenancy by and act which is inconsistent with its continued existence.
Creating of a joint tenancy in property establishes a present estate in which both joint tenants are seized of the whole. Unity of time, title, interest, and possession are requisites for creation, and the principle characteristic of the estate created is a right of survivorship. This right of survivorship does not pass anything from a deceased joint tenant to the survivor since, by the very nature of joint tenancy, title of the joint tenant who dies first terminates at death and vests eoinstanti in the survivor. Both cotenants being seized of the whole, the survivor’s estate simple is a continuation, or extension, of the surviving tenant’;s existing estate. A joint tenancy simply creates a present estate which, absent severance of the tenancy during life of both tenants, assures the surviving joint tenant absolute ownership of the whole subject matter of the joint tenancy. In re Estate of Littleton, 2013 OK CIV APP 94, 313 P.3d 1062 (Div. 1 2013).
An experienced probate and living trust attorney like Brent D. Coldiron, knows what to do in these situations. His fees are reasonable. The best money ever spent is to get good legal advice before signing your name to something. Contact Brent at (405) 478-5655 or 737-2244. His website is http://coldironlaw.com.