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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].
About the Author
Albert Goodwin Esq. is a licenced New York attorney with over 17 years of courtroom experience. His extensive knowledge and expertise make him well-qualified to write authoritative articles on a wide range of legal topics. He can be reached at 212-233-1233 or [email protected].
