Legal Papers
A crucial relationship in the ownership of real property, which provides that each party owns an undivided interest in the entire parcel, with both having the right to use all of it and the right of survivorship, which means that upon the death of one joint tenant, the other has title to it all. procedurally, on the death of one joint tenant, title in the survivor is completed by recording an “affidavit of death of joint tenant,” describing the property and the deceased tenant, with a death certificate attached, all of which is sworn to by the surviving joint tenant. this process avoids probate of the property, but may have some tax consequences which should be explored with an accountant at the time of recording the original deed. if the owners do not want full title to the property to pass to the survivor, then joint tenancy should not be used. joint tenancy (as well as any other common ownership) between a parent and a minor child should be avoided since the property cannot be transferred in the future without the parent becoming appointed a guardian of the child’s estate by court order, and the property and the proceeds therefrom will be under court control until the child is 18. in community property states, some courts have found that joint tenancy presumes that the property is not community property (which could result in loss of estate tax limitation on the death of the first spouse to die), but proof of community interests can be established. a bank account held in joint tenancy also presumes a right of survivorship, but this presumption can be overcome by evidence that the account was really the property of only one, and the joint tenancy was for convenience.
