Joint Tenancy
Joint tenancy is the concurrent estate built around one feature that overrides everything else: the right of survivorship.
3. Joint Tenancy
“Joint tenancy” or “joint tenants” describes a relationship in which two or more owners simultaneously hold identical interests in real property conveyed by the same instrument and with the same right of possession, and in which each joint tenant has a right of survivorship to the other joint tenants’ shares.
- The law disfavors joint tenancies. Express language is necessary to create a joint tenancy, such as “to A and B as joint tenants with right of survivorship.”
- An owner may create a joint tenancy by conveyance to themself and at least one other owner.
- All joint tenants have equal rights to possession and use of the entire property.
- [The fractional interest of each joint tenant is freely alienable, but conveying the fractional interest severs the joint tenancy into a tenancy in common as to that interest, leaving the joint tenancy intact as to the unsevered joint interests.]
- Upon the death of one joint tenant their interest remains with the surviving joint tenant(s).
- The joint tenancy interest of the deceased joint tenant is divided pro rata among the surviving joint tenants.
- A sole surviving joint tenant owns the full property in fee simple absolute.
- A joint tenancy terminates when the full interests of all joint tenants are transferred in a single conveyance, unless the conveyance itself creates a new joint tenancy.
- A joint tenancy interest is extinguished upon the death of the joint tenant and is not part of a deceased joint tenant’s estate. Thus, a joint tenancy interest cannot be transferred [by will or by inheritance].
Joint tenancy is built around the right of survivorship: a deceased joint tenant's interest is extinguished and passes to the survivors, never by will or inheritance. It requires express survivorship language to create, and conveying a fractional interest severs only that share.
Joint tenancy is the concurrent estate built around one feature that overrides everything else: the right of survivorship. Two or more owners hold identical interests in the same property, taken by the same instrument, with the same right to possess the whole.
Because the law disfavors joint tenancies, you do not get one by accident. The conveyance has to say so expressly, with words like "to A and B as joint tenants with right of survivorship." A deed that just names two grantees without that survivorship language does not create a joint tenancy at all; it leaves a tenancy in common, where the share descends like any other property. That single drafting fact decides a huge share of these questions. An owner can even create the estate by deeding the property to themselves and at least one other person, so a sole owner can manufacture a survivorship arrangement in one stroke.
While the joint tenancy lasts, every joint tenant has an equal right to possess and use the entire property, and each one's fractional interest is freely alienable. But alienating it has a cost to the survivorship feature: conveying a fractional interest severs the joint tenancy into a tenancy in common as to that interest, while the joint tenancy stays intact among any remaining unsevered interests.
Now the crown jewel. When a joint tenant dies, their interest does not pass to their heirs and it cannot be left by will. The interest is extinguished at the moment of death and is simply not part of the decedent's estate. What remains belongs to the surviving joint tenant or tenants, divided pro rata among them, and when only one joint tenant is left standing, that survivor owns the whole property in fee simple absolute. The estate also ends when the full interests of all the joint tenants are transferred in a single conveyance, unless that conveyance itself sets up a new joint tenancy.
A will that purports to devise a joint tenancy interest does nothing; survivorship beats the will every time. And a deed naming two grantees without express survivorship language creates only a tenancy in common, not a joint tenancy.
"Survivorship beats the will."
A joint tenant's interest vanishes at death, is not in the estate, and cannot pass by will or by inheritance; it stays with the surviving joint tenants pro rata, and a sole survivor takes the whole in fee simple absolute.
Two creation tells: you need express survivorship language (no magic words, you get a tenancy in common), and an owner can make a joint tenancy by deeding to themselves plus at least one other.
One severance tell: conveying a fractional interest turns that interest into a tenancy in common but leaves the joint tenancy intact among the rest.
Three siblings take title to a cabin by a deed reading "to the three of them as joint tenants with right of survivorship." Years later, the oldest sibling dies, leaving a will that purports to give "all my interest in the cabin" to her own child. The other two siblings claim the whole cabin by survivorship.
If the oldest sibling, while alive, had instead conveyed her fractional interest to a buyer, that conveyance would have severed her interest into a tenancy in common, the buyer would hold that one-third as a tenant in common, and the joint tenancy would have remained intact only between the other two siblings.
A 'No, the survivor does not take' or 'Yes, the heir/devisee takes' answer resting on a true but irrelevant fact, usually that the decedent left a valid will or that the share was the decedent's to give.
A joint tenancy interest is extinguished at death and is not part of the decedent's estate, so it cannot pass by will or inheritance; the will's validity does not matter.An answer that treats the joint tenant's share as descending to heirs or passing to an estate, importing tenancy-in-common descendibility into a joint tenancy.
Survivorship is the joint tenancy's defining feature; the interest remains with the surviving joint tenants pro rata and a sole survivor takes the whole in fee simple absolute.An answer claiming a joint tenancy arises by default from a conveyance to two people, or that a joint tenant needs the others' consent to convey, or that a joint tenant may devise the share.
Express survivorship language is required to create the estate; the fractional interest is freely alienable without consent; and the interest cannot be devised by will.An absolute option: a joint tenant can NEVER convey, ANY conveyance destroys the WHOLE joint tenancy, or the survivor ALWAYS takes everything no matter what happened during life.
The interest is freely alienable, and a lifetime conveyance severs only that interest into a tenancy in common, leaving the joint tenancy intact among the rest, so the universal is wrong.the stem gives you two or more co-owners and then someone dies, or someone tries to leave their share by will or pass it to heirs, or a deed is quoted and you have to decide what estate it created.
check creation: does the conveyance use express survivorship language?
If not, it is a tenancy in common and the share descends.
If it does, you have a joint tenancy, so when a joint tenant dies their interest is extinguished, never enters the estate, and cannot pass by will or inheritance; the surviving joint tenants take it pro rata, and a sole survivor owns the whole in fee simple absolute.
Watch for a mid-life conveyance of a fractional interest, which severs that interest into a tenancy in common while the joint tenancy survives among the rest.
Any answer that routes a joint tenant's share to a devisee or heir is a distractor.
Two sisters bought a vacation cottage together, taking title under a deed that conveyed the property to them as joint tenants with right of survivorship. Years later one sister died. In a valid will, she left “all of my interest in the cottage” to her adult son. After the funeral, the surviving sister claimed that she now owned the entire cottage, while the son insisted the will gave him his mother's half.
Who is entitled to the deceased sister's interest in the cottage?
A landowner deeded a parcel “to a brother and a friend,” with nothing in the deed about survivorship or about how the two were to hold title. Several years later the brother died intestate, survived by a daughter who was his sole heir. The friend asserted that, as the survivor, he automatically owned the whole parcel.
Is the friend correct that he owns the entire parcel?
Three friends took title to a small office building as joint tenants with right of survivorship, each contributing equally to the purchase. One of the three later died, and some time after that a second of the three died as well. Neither attempted to transfer any interest during life. The lone remaining friend then went to refinance the building and the lender asked what estate she held.
What interest does the remaining friend now hold in the building?
Three co-owners held a tract as joint tenants with right of survivorship. One of them sold and deeded her entire fractional interest to an outside buyer while all three were alive. The other two co-owners did not transfer their interests. A title examiner was later asked to describe how the four-cornered ownership of the tract stood after that sale.
How is the tract held after the sale?
A father and his daughter owned a lakeside lot as joint tenants with right of survivorship. The father, wanting his other child to share in the lot, signed a valid will devising “my half of the lakeside lot” to that other child. The father made no transfer of the lot during his lifetime, and he died still holding his joint tenancy interest. The other child produced the will and demanded a half interest in the lot.
Will the other child take a half interest in the lot under the father's will?