Questions about Joint Tenancy Law

There are several laws under which people may own property. Joint tenancy with the right of survivorship has many advantages over the others. However, when ownership of property and other assets which are held under joint tenancy are challenged, questions may arise. Many turn online to the Family Lawyers on JustAnswer for insights and solutions. Here are some of the most frequently asked joint tenancy questions on JustAnswer.

What is meant by joint tenancy? Can a joint tenant will property to his or her children?

Joint tenancy creates a right of survivorship. A joint tenancy or joint ownership means that the surviving owner becomes the full owner of the property when the other dies. Neither joint tenant has the right to will the property to any of their children or any other person, nor to direct the surviving joint tenant regarding its future use. Once a joint tenant dies, the other party becomes 100% the full owner of the property without any encumbrances, and can will it to whomever he or she likes, sell it, or dispose of it according to his or her wishes.

The very reason that people choose joint tenancy instead of tenants in common is to avoid probate by having ownership transfer automatically. However, if the house is owned as tenants in common, one can will his share to his children. You can ask Family Lawyers on JustAnswer and seek guidance in matters pertaining to probate and various kinds of ownership.

Can monies from a joint tenancy between a father and daughter be used to pay off debt during the daughter’s marriage? If the daughter goes in for a divorce, may the father stake a claim for recovery from his ex-son-in-law?

The account is deemed to be held as an undivided interest, and thus if the daughter uses the account for marital debts, the decision to use those funds would be entirely between the daughter and father. It would have nothing to do with the marital community, and the father would not be able to stake a claim against his ex-son-in-law since the daughter is an owner of the account.

What are some advantages and disadvantages of tenants in common versus joint tenancy in California? In the case of marriage, can one use tenants in common to protect any premarital assets?

Various U.S. states recognize different tenancy laws. California does not recognize tenancy by the entireties, which is an advantageous and beneficial law to holding property as joint tenants, since creditors of one spouse will be unable to attach property when held in such a manner. However, California does allow for real property to be held as "community property with rights of survivorship.” This allows the property to avoid probate if one spouse dies, as it passes automatically to the other spouse.

But, if rights of survivorship are not required, one may want to hold as tenants in common. This form of ownership provides for an indivisible 50% interest in the property without the rights of survivorship. In this case, either spouse may transfer his or her interest to another party. But if property is purchased as a married couple, it would be considered as community property and a court could equitably divide the proceeds of any sale by one spouse in a divorce proceeding. In California, married couples generally prefer to hold real property as community property with rights of survivorship.

Which party is responsible for the upkeep of property in a joint tenancy?

All parties of the joint tenancy are technically responsible for any expenses pertaining to the upkeep of the property. It is up to the joint tenants to decide as to which party and how much of the expenses will be borne by whom. There is no law in existence that requires a specific division of expenses.

In a joint tenancy land deed between spouses, what happens to land owned when a divorce takes place? Can an ex-spouse prevent the other from accessing the property as long as the joint tenancy is in force?

In a joint tenancy land deed, each spouse owns half the property and can force a sale of it in a divorce. An ex-spouse cannot prevent the other (ex-spouse) from accessing the property by any means and under any grounds.

Many jurisdictions in the U.S. refer to a joint tenancy as a joint tenancy with right of survivorship, and a few U.S. States treat the phrase joint tenancy as synonymous with a tenancy in common. To avoid confusion, asking a Family Lawyer on JustAnswer can help provide clarity.