What is Joint Tenancy?
Joint tenancy is a way of owning real or personal property by two or more individuals. When property is owned in joint tenancy, there are two or more owners and each owns an undivided share in the same interest. If property is not owned in joint tenancy it is owned as “tenants in common” and each owner owns a particular percentage. In order to own property in joint tenancy, the deed or title must have the words “as joint tenants” or in “in joint tenancy,” otherwise it will be assumed that the co-owners own the property as tenants in common. In a joint tenancy situation, when one of the joint tenants dies, his or her interest automatically passes to the surviving joint tenant(s), allowing the surviving joint tenant(s) to avoid probate.
Advantages vs. Disadvantages of Joint Tenancy
Owning property in joint tenancy allows the surviving tenants to avoid filing a probate action with the Court, because title transfers by operation of law.
For Medicaid recipients, if property is owned in joint tenancy it never becomes part of the recipient’s probate estate, and is therefore not subject to estate recovery claims by the Colorado Department of Health Care Policy and Financing.
Property owned in joint tenancy is subject to the liabilities and creditors of all of the joint tenants. For example, if one of the joint tenants is held liable in a civil law suit, the plaintiff or creditor may force the sale of the entire property. Similarly, if a bank account is owned in joint tenancy, any of the joint tenants has the right to make withdrawal at any time.
Tilting or transferring property into joint tenancy or making major improvements to property already held in joint tenancy, may cause gift tax liability (unless the joint tenants are married).
Owning property in joint tenancy may cause unintended consequences, such as disinheriting a child or loved one because provisions were made for them in the will, but the joint tenancy property is not subject to the terms of the will.
Property owned in joint tenancy may be subject to the claims of a surviving spouse and children when a decedent’s probate estate assets are insufficient to pay such claims.
All of the attorneys in our office can assist you with determining if Joint Tenancy will be beneficial for you and draft the necessary documents for your real estate property.
This article is an excerpt from a pamphlet published by the Colorado Bar Association.
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