What is the difference between “joint tenants with right of survivorship” and “tenants in common”?

Asked on September 25, 2010 under Real Estate Law, Montana

Answers:

M.D., Member, California and New York Bar / FreeAdvice Contributing Attorney

Answered 10 years ago | Contributor

These terms refer to have title to property is held.

Two or more persons may own property as "joint tenants with right of survivorship". Bank accounts, certificates of deposit and stock certificates are the most common types of personal property owned in this manner. Real property may also be owned jointly with a right of survivorship. Such joint tenants share equal ownership of the property. This form of ownership generally can only be created by express agreement. The document creating the joint tenancy must provide for the right of survivorship. For example, if you and another person purchase a home, you must choose whether the deed will include language with or without a "right of survivorship" (if you choose without a right of survivorship, you own the home as tenants-in-common; see below).  What this means is that upon the death of a joint tenant, the property automatically passes to the surviving joint tenant(s). The deceased joint tenant's Will (or state intestacy law, if someone dies without a Will) does not control who gets the property.    

Note: If the joint tenants mutually agree to sell the property, they must equally divide the proceeds of the sale; if one joint tenant decides to convey her or his interest in the property to a new owner, the joint tenancy is broken and a tenancy-in-common is created.

A tenancy-in-common means that 2 or more people own fractional interests in the same property. For example, if 3 people own the property equally as tenants-in-common, each person owns an undivided 1/3 interest in the property. Each co-owner has the right to use and possess the whole property, as long as other co-owners are not excluded. Generally, each may sell his or her undivided interest in the property without the permission of the other co-owners. The purchaser buys an undivided interest in the property, and the remaining tenants-in-common have a new co-owner. When a co-owner dies, ownership of their interest is controlled by their Will (or by state intestacy law if they die without a Will). In other words it becomes part of their estate and their beneficiaries or heirs will inherit their share of the property.


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