Tenants in common vs joint tenants rights of survivorship


When you have two or names on a real estate deed, what words come after those names can be important. When you are 'tenants in common' and one of the owners passes away, his or her share will pass according to his or her will. When you own the property as 'joint tenants with rights of survivorship' and of the owners dies, his or her share automatically passes to the surviving owner or owners. If the deed has 'his wife' or 'husband and wife', you are a tenancy by the entirely and automatically joint tenants with rights or survivorship. If there are no words after the names on the deed, then you are automatically tenants in common.

I had a client, new client yesterday and she co-owned a piece of property with her dad and come to find out that dad has passed away and dad’s one half interest in this piece of property must go through probate. Why? Because when the deed was prepared they put her name and dad’s name but they failed to put the magic language, “Joint tenants’ rights of survivorship.”

They closed it at a title company. The title company saw, “Oh, we’ve got two buyers, daughter and father.” Title company never went to the next step and said, “Do you guys want to be tenants in common or do you want to be joint tenants with rights of survivorship?” Title company apparently never gave them that option because it didn’t have the words “tenant in common”, it didn’t have “joint tenants’ rights of survivorship”, and it didn’t have either one and, therefore, it’s automatically tenants in common.

Title companies should be asking the buyers that question but otherwise you as a savvy buyer, if you are going to co-own property with people you need to at that moment of closing make sure that you are their tenants in common or joint tenants with rights of survivorship, whichever one you want to accomplish.

There can be reasons why somebody wants it to be tenants in common. However, the most important thing is, make sure it is the words that you want it to be after because like in this situation where it should have been joint tenants’ rights of survivorship, because it was not, now daughter has to go through a probate on dad’s half.