What Are Joint Tenants With Rights of Survivorship in New York City?

Joint tenants with rights of survivorship refer to the co-owners of a property held under joint tenancy with rights of survivorship (JTWROS). JTWROS is a type of property ownership where there are two or more co-owners of a property and each co-owner’s share would automatically transfer to the surviving co-owner/s (or joint tenant/s) upon death without need of probate or a will. The deceased co-owner’s share in JTWROS property will not pass to his estate but to the surviving joint tenants.

What Properties Can Be Owned as Joint Tenants With Rights of Survivorship

Most properties can be owned under JTWROS. However, this type of property ownership can be more commonly seen in real estate, bank accounts, and investment accounts. Thus, you will see the word “JTWROS” or “Joint Tenancy with Rights of Survivorship” in deeds, signature cards, investment account applications or other instruments acquiring such property.

How Joint Tenancy With Rights of Survivorship is Created

Express intention

In New York, joint tenancy with rights of survivorship is created expressly. In the instrument acquiring the property, the words “joint tenants with rights of survivorship”, “JTWROS”, or any other survivorship language must appear to establish the intent to create this property regime. In the absence of survivorship language, the assumption is that the co-owners intended to create a tenancy-in-common. In tenancy-in-common, the co-owner’s share passes to his estate upon death and not to the other surviving co-owners.

Four unities

To create JTWROS in New York, the four unities must also be present: unity of time, unity of title, unity of interest, and unity of possession. In unity of time, the joint tenants must acquire the property at the same time. Unity of title means that the joint tenants acquire the property through the same deed or instrument. Unity of interest refers to the joint tenants having equal ownership shares. Unity of possession gives each co-owner the right to possess and use the whole property.

Most issues regarding unities in joint tenancy with rights of survivorship refer to unity of time and unity of title. When a person is subsequently added as a joint tenant with rights of survivorship, as to that person, there would appear to be no unity of title or time. Thus, it could be argued that, for that subsequently added person, the intention was to create a tenancy-in-common with such alleged joint tenant.

For example, we have seen cases where a brokerage account was initially created with two joint tenants as JTWROS under one investment account application. However, subsequent statements of account show an additional person who was allegedly added as a joint tenant with rights of survivorship without the execution of new JTWROS document among the three joint tenants. Because there is no unity in time and title with respect to the subsequently added joint tenant, an argument could be raised that such person is not a joint tenant but a tenant-in-common.

Terminating a Joint Tenancy With Rights of Survivorship

To terminate a JTWROS, a joint tenant can:

• Sell his share. With respect to the new co-owner, it would be a tenancy-in-common.
• Agree with other joint tenants to sever the joint tenancy. A new deed or document will be executed acquiring the property under the new property regime (tenancy-in-common).

JTWROS as a Legal Instrument to Avoid Probate

Most people execute JTWROS documents to avoid probate. Property under joint tenancy with rights of survivorship does not pass through will or intestacy under expensive court processes. It can be transferred immediately to the surviving joint tenant/s by the mere submission of the deceased joint tenant’s death certificate and an affidavit of the surviving joint tenants.

Contesting a Joint Tenancy With Rights of Survivorship

The grounds for contesting a joint tenancy with rights of survivorship are similar to the grounds for contesting a deed: lack of capacity, undue influence, fraud, and improper execution. JTWROS may also be contested when there is an absence of any of the four unities: time, title, possession, and interest.

Contesting JTWROS usually occurs when a parent and a sibling own property under JTWROS, to the exclusion of the other children. There have also been contests on JTWROS bank and investment accounts when the joint tenants have the relationship of principal and agent. In that case, the estate will argue that the bank or investment account is a joint account for the convenience of the principal and not a true JTWROS.

Complex issues may arise in a joint tenancy with rights of survivorship. Oftentimes, the estate will claim that such property is not owned under JTWROS and belongs to the estate. Should you have problems regarding joint tenancy with rights of survivorship, we at the Law Offices of Albert Goodwin are here for you. We have offices in New York City, Brooklyn, NY and Queens, NY. You can call us at 212-233-1233 or send us an email at [email protected].

New York Statutes That Govern Joint Tenancy With Rights of Survivorship

Survivorship rights in New York are governed by statute, and the controlling provision differs depending on whether the asset is real property or a financial account.

• EPTL 6-2.2: A disposition of real or personal property to two or more persons is presumed to create a tenancy in common unless the instrument expressly declares a joint tenancy with right of survivorship. New York courts will give effect to any deed language that clearly expresses survivorship intent, not only a rigid formula.
• EPTL 6-2.2(b) — tenancy by the entirety: A conveyance of real property to a husband and wife creates a tenancy by the entirety unless expressly declared otherwise. Tenancy by the entirety is available only to married couples and only for real property. Neither spouse can unilaterally destroy the other's survivorship right, and a creditor of one spouse generally cannot force a sale of the whole property during both spouses' lives.
• Banking Law 675: When a bank account is opened in the names of two persons payable to either or the survivor, the statute creates a presumption of a true joint tenancy, and the signatures on the signature card are presumptive evidence of intent. This presumption can be rebutted, most often through the convenience account doctrine.
• RPAPL Article 9 — partition: Governs partition of real property held by joint tenants or tenants in common who can no longer agree. A living joint tenant who files a partition action severs the joint tenancy as to that interest.

For bank accounts, the controlling document is the signature card; for brokerage accounts, it is the account application. If survivorship language is missing from the actual signature card or application — even if monthly statements are labeled JTWROS — there is no Banking Law 675 presumption, and the asset may belong to the contributor or the estate. Similarly, if an account is an "or" account without survivorship language, there is no presumption and the funds belong to whoever actually contributed them. If only a parent funded the account, the parent's estate is entitled to it.

How JTWROS Challenges Are Litigated in New York

Once a joint tenant dies, attacking a survivorship deed or account is similar to a will contest: the goal is to set the transfer aside so the asset passes through the decedent's will or by intestacy. We typically plead more than one ground.

Undue influence

Undue influence is the most common ground in parent-child cases. New York requires proof of motive, opportunity, and the actual exercise of undue influence. Motive exists where the influencer becomes a beneficiary — a child who contributed nothing yet receives the home through survivorship. Opportunity is shown by physical proximity, time alone together, a relationship of trust or dependency, and the decedent's weakened mental or physical state. The actual exercise is often proven by circumstances around the signing: the influencer arranged the attorney or notary, selected witnesses, or was present when the deed was executed. Where a confidential relationship exists and the beneficiary was active in procuring the transfer, New York courts may shift the burden to the beneficiary to explain the transaction. We routinely subpoena the decedent's medical records for roughly three years before and two years after the deed to document cognitive decline, sedating medications, or diagnoses such as dementia, along with correspondence, drafts, and deposition testimony from the attorney, notary, and witnesses.

Fraud

To set aside a deed for fraud, we must show a material misrepresentation or omission, knowledge of its falsity, intent to defraud, reasonable reliance, and resulting damage. In the deed context, the question is whether the decedent would have signed but for the misrepresentation — for example, being told the document was a power of attorney or a refinancing form rather than a survivorship deed.

Forgery

Forgery occurs when the signature on the deed is not genuinely the grantor's. These cases turn on forensic handwriting analysis, notary logbooks, and proof of the decedent's whereabouts on the recorded date. A forged deed is void from the outset and conveys nothing.

Rebutting the survivorship presumption on joint accounts

The Banking Law 675 survivorship presumption is exactly that — a presumption. New York Surrogate's Courts will set it aside where the evidence shows the surviving owner was added only for convenience, such as helping an aging parent pay bills, rather than to receive a gift. Decisions such as Matter of Friedman and Matter of Camarda illustrate the factors courts weigh when deciding whether the presumption has been rebutted.