assignment of joint tenancy

Judicial Branch of California

Simplified probate procedures.

California has "simplified procedures" for transferring property when the estate is worth under a certain amount (from $20,000 to $150,000 depending on the circumstances and the kind of property).

Click on a topic to learn more:

• What do I do with property held in joint tenancy after the other tenant dies?
• What if the person who died had $20,000 or less in assets?
• What if the decedent’s assets are worth $166,250 or less?
• What if the decedent’s real property in California is worth $50,000 or less?
• Can the Court make an Order to clear title to real and personal property worth $150,000 or less?
• What is a Spousal Property Petition when there is a surviving spouse?
• How do I get a decedent’s insurance proceeds and retirement death benefits?
• How can I find a Probate lawyer or legal aid?

What is joint tenancy?

Does joint tenancy have tax implications?

How do I create a joint tenancy?

Are there any pitfalls to joint tenancy?

What kinds of property do people put in joint tenancy?

How do I change the title on real property after the other tenant dies?

How do I prepare an Affidavit?

How do I record an Affidavit?

How do I handle bank accounts held in joint tenancy?

How do I handle vehicles held in joint tenancy?

How do I handle securities held in joint tenancy?

Joint tenancy is a way for two or more people to own property in equal shares so that when one of the joint tenants dies, the property can pass to the surviving joint tenant(s) without having to go through probate court.

Yes. If a joint tenant dies, the property is included in his or her taxable estate. Talk to a lawyer before putting property in joint tenancy or ending a joint tenancy.

You must have a written document, like a deed to real property or title to a car, that says the property is in joint tenancy with the names of the joint tenants.

Yes. If a joint tenant died and puts in a will or trust that his or her share would pass to a person other than the surviving joint tenant, the joint tenancy would override his or her wishes. If it is not your intention for the co-owner of an asset to inherit your share, you should not enter into a joint tenancy. Talk to a lawyer about other ways to share title to property.

The most common assets owned jointly are real property (land or buildings), bank accounts, stocks and bonds and automobiles.

You do not have to go to court. But, you need:

• A certified copy of the death certificate of the joint tenant who died
• An Affidavit signed by “anyone with knowledge of the facts”

You can change the title using a form called “Affidavit of Death of Joint Tenant.” [See the Sample Affidavit below.]

There may be tax consequences. So, talk to a lawyer before you record the Affidavit.

You can use this Sample Form. It is not an official form, but you can use it for most cases. Click here to download this sample form in PDF format.

(Sample Form) AFFIDAVIT OF DEATH OF JOINT TENANT STATE OF CALIFORNIA COUNTY OF SANTA CLARA I, [ affiant's name ], being duly sworn, say: I am 18 years of age or over. The decedent described in the attached certified copy of Certificate of Death is the same person as [ name of person who died here ], who is named as one of the parties in the deed dated [ date ], executed by [ name of grantor ] to [ name of decedent ] and [ name of surviving joint tenant ], as joint tenants, recorded on [ date ], in [ e.g., Book __, page _ _] of the Official Records of Santa Clara County, California, covering the property situated in [ city ], Santa Clara County, California, described as follows: [ Provide legal description ] Dated: _______ __ [ Signature ]___ ___ [ Typed name ]_ Affiant Subscribed and sworn to before me on [ date ] ___[ Signature ]___ ___[ Typed name ]__ [ Seal ] Notary Public for the State of California

To read more about the law on this topic, see Probate Code Section 210-212 .

Take a certified copy of the death certificate of the deceased joint tenant and your affidavit to the recorder's office in the county where the real property is located.

In most cases, you can remove the deceased person’s name from the accounts by taking these documents to the bank:

• A certified copy of the death certificate of the deceased joint tenant, and
• A check drawn for the balance of the checking account, or
• The savings account passbook.

The National Automobile Club of California and the California State Automobile Association (AAA) will help you get the ownership certificate and the registration card reissued.

Take the documents listed below to the club office closest to you. You can find the address in your phone book. They will give you a temporary ownership certificate and send your documents to the Department of Motor Vehicles (DMV) for re-issuance.

• The ownership certificate signed by the surviving owner,
• The registration card,
• A certificate of compliance with the smog-pollution control law (if the deceased joint tenant is not the grandparent, parent, sibling, child, grandchild, or spouse of the surviving joint tenant.) See Vehicle Code Section 4000.1(d) (2) , and
• A certified copy of the death certificate for the deceased joint tenant.

Take or mail the following documents to the transfer agent at the financial institution:

• The original stock certificate (if the deceased joint tenant had one).

There may be tax consequences. So, talk to a lawyer first.  

If the deceased person’s real and personal property is worth $20,000 or less, the spouse or minor children can ask the court to "set aside" the estate. This is much easier than a full probate proceeding.

If you want the court to set aside the estate, you can use this Sample Form. It is not an official form, but you can use it for most cases. Click here to download this sample form in PDF format.

(Sample Form) Petition to Set Aside an Estate [ Title of court ] The Estate of [ decedent ]) No._ _ _ _ _ _ PETITION FOR ORDER TO SET ASIDE ESTATE NOT EXCEEDING $20,000 _ _[ Name of Petitioner ]_ _alleges: 1. _ _[ Name of decedent ]_ _died on_ _[ date ]_ _, and at the time of _ _[ his/her ]_ death was domiciled in Santa Clara County, California, and left an estate, the net value of which, above all liens and encumbrances at the date of death and the value of any homestead interest set aside from the decedent's estate under Probate Code §§6520 and 6521, but exclusive of all property in which the decedent held a life interest or held as a joint tenant, does not exceed $20,000. 2. The estate consists of the following property:_ _[ Describe property and give estimated value ]_ _. 3. Liens and encumbrances on the property at date of death were as follows: __[ Describe liens and encumbrances and state amounts ]_ _. 4. Petitioner(s) _ _[ is/are ]_ _the_ _[ executor named in decedent's Will/spouse of the decedent/guardian of decedent's minor child/personal representative of decedent's estate/decedent's adult child who was a minor on the date of decedent's death ]_ _and _ _[ is/are ]_ _entitled to an assignment of the entire estate under the provisions of California Probate Code Sections 6600-6615 as follows:_ _[ State proposed disposition of estate ]_ _. 5. All expenses of the last illness, the funeral, and administration_ _ have been paid/will be paid before the hearing on this Petition ]_ _. 6. The names, addresses, ages, and relationships of all heirs, legatees, and devisees of the decedent are as follows:_ _[ List ]_ _. WHEREFORE, Petitioner prays that the entire estate be assigned to _ _ _ _, that there be no further proceedings regarding the estate, and that such other relief be granted as the court considers proper. Dated: _ _ _ _ __[ Signature ]__ _ _ [ Typed name ]_ _ Petitioner __[ Signature ]__ _ _[ Typed name ]_ _ Attorney(s) for Petitioner  

Do I have to include all property to calculate the value of the estate?

You do not have to include property held in joint tenancy, multiple-party accounts, or pay-on-death accounts. But, you must include the decedent's share of any community property.

Who has to pay the decedent’s debts?

If the Court sets aside the estate, the surviving spouse or children have to pay the decedent's unsecured debts up to the value of the estate, minus liens and homestead or other exempt property.

If you get the estate, you are responsible for the decedent’s debts for one year unless the creditor files a court action during that year.

There may be tax consequences. So, talk to a lawyer first.

To read more about the law on this topic, see Probate Code Section 6600 .  

You can collect the decedent’s personal property and distribute it to the heirs (or the beneficiaries named in the Will) by using a declaration. This method is called the Section 13100 Procedure .

This procedure has certain rules:

• You can’t use it to distribute real property (land or buildings)
• You can use it for property that would automatically pass to a spouse
• You must wait 40 days after the decedent dies before you can collect or distribute the decedent’s assets
• You must give a written declaration to the person or agency that has the property or is in charge of the transfer of the property

To read more about the law on this topic, see Probate Code Section 13100 .

What if the person dies without a Will?

If the decedent dies without a Will, the only people who have the right to collect his or her property are:

• conservator or guardian of the estate of any heir,
• trustee of a trust created by the decedent (inter vivos trust) for the benefit of an heir, or
• any other successor allowed under the law.

If the decedent dies with a Will, only the beneficiaries under the Will are entitled to collect.  

To transfer the real property, use California Judicial Council Form DE-305 , Affidavit Re: Real Property of Small Value ($50,000 or Less). After filling it out, sign it in front of a notary. The form will ask you for an inventory and appraisal and a description of the real property.

There are certain rules for this procedure:

• It is not for joint tenancy. (See joint tenancy above.)
• Any heir or beneficiary can use it.
• The value of the decedent's personal property does not matter.
• You must file your form with the Clerk of the Superior Court. You will have to pay a fee. (See fee listed for "Filing affidavit under Probate Code 13200" on the local fee schedule ).
• If the decedent had a guardian or conservator when s/he died, you must mail them a copy of the completed form.
• It has been at least 6 months since the decedent died.
• All of the decedent's funeral expenses, expenses of last illness and unsecured debts have been paid.

There must not be a current or past probate proceeding.

Or, if there is a probate proceeding pending:

• The personal representative consents in writing to this procedure.

If you need a marketable title (title that is free from any defects or reasonable doubts about who has title) to the property, take a certified copy of your filed form to the County Recorder of the county where the real property is located.

To read more about the law on this topic, see Probate Code Section 13200 .  

Yes. If you are an heir or beneficiary, you can ask the Court to make an order to clear title. You can do this to transfer:

• real property only, or
• real and personal property

You cannot do this for personal property only. To transfer only personal property, use the Affidavit or declaration procedure.

You do not have to include property outside of California, held in joint tenancy, in a revocable living trust, in pay-on-death accounts, passing to the surviving spouse under a Spousal Property Petition, or other property as explained in Probate Code Section 13151 .

There are certain rules:

All heirs or beneficiaries to the decedent’s property must join with you in your request to the court (by signing the petition).

• The personal representative must consent to this procedure in writing.
• It must be at least 40 days since the decedent died.
• All of the decedent's unsecured debts must have been paid.

Fill out form DE-310 , Petition to Determine Succession to Real Property. You can use this form for clearing title to Real and Personal Property. You cannot use this form for Personal Property only.

File the form with the Court Clerk. The Clerk will assign a hearing date. You must have notice of the hearing served to the person listed on paragraph 14 of DE-310 .

Someone 18 or over and not involved in this case must serve the notice. Use form DE-120 to prove that notice has been given. File this completed form along with any other documents required on DE-310 .

You must also fill out DE-315 , Order Determining Succession to Real Property (Estates $150,000 or less), and give it to the clerk’s office at least 4 days before the hearing.

If the Court approves the Petition, the judge will sign the Order and give it back to you. Take the signed order and file it in the Clerk's Office.

If you need a marketable title (title that is free from any defects or reasonable doubts about who has title) to real property transferred to you by the Order, take a certified copy of your filed Order to the County Recorder of the county where the real property is located.

If you receive property under this procedure, you will be responsible for the decedent's debts , up to the fair market value of the property you received as calculated at the time of death.

A Spousal Property petition is a way to transfer or confirm property to a surviving spouse without a full probate proceeding. It can usually be done with only one hearing in the court. If the decedent’s estate is not complicated, the petition can settle questions about title or ownership of property.

Who can file a Spousal Property petition?

• The surviving spouse,
• The representative of a surviving spouse's estate (if the surviving spouse is also now deceased), or
• The conservator of the surviving spouse's estate.

How do I file a Spousal Property petition?

• Fill out and file form DE-221 explaining why the property belongs or should legally pass to the surviving spouse and describing the property.
• Attach a copy of the decedent’s Will (if there is a Will).
• Attach a copy of the agreement (if the description of the property as a community property is based on a written agreement between the decedent and the surviving spouse).

Will there be a Court Hearing?

Yes. When you file your forms, the clerk will tell you the hearing date. At the hearing, the judge will decide whether to grant or deny your petition.

Do I have to do anything before the hearing?

Yes. At least 15 days before the hearing, you must have the following people served (given) a Notice of Hearing (by mail or in person):

• The executor or administrator of the estate (if a probate of the estate has been started in court).
• All heirs of the deceased spouse.
• All persons who have an interest in the estate and have asked for Special Notice (Probate Code Section 1250 ).
• The Attorney General of California (if the Petition is based on the deceased spouse’s Will and if the Will involves a charitable bequest or devise when there is no identified trustee resident in California or no identified legatee, devisee, or beneficiary).

Do I need an Order for a Spousal Property Petition?

Yes. You must fill out DE-226 , Spousal Property Order and give it to the clerk’s office at least 4 days before the hearing. Please attach a note to this form with the date of your hearing.

If the Court approves the Petition, the judge will sign the Order and give it back to you. Take the signed Order and file it in the Clerk's Office.

Talk to a lawyer to see if you will be responsible for the decedent's debts.  

Life insurance proceeds

Find all the decedent’s life insurance policies, if available.

You may be able to get them from:

• The insurance company or companies
• Credit card companies (like, insurance for credit card debt)
• Fraternal organization or club memberships
• The employer (Group life insurance)
• The military
• Find out who the beneficiaries of the policy are.
• Contact the decedent's insurance agent or broker.
• Advise the insurance company of the decedent's name, date of death, policy number and who the beneficiaries are.
• Send a certified copy of the decedent's death certificate along with the claim form to the insurance company.
• Ask the insurance company for a proof of claim form.

Retirement benefits

Find out the amount of the benefit, the entitled beneficiaries and the payout options.

Send a certified copy of the decedent's death certificate along with the claim form to the company.

Talk to a tax consultant to learn about your options and the tax implications.

Some companies have Human Resources Departments that help employees and their families understand retirement/employee benefits.

Other companies may require you to consult with a bank or institutional trustee, a life insurance company or a commercial pension administrator.

You can find a probate lawyer from the membership list of the Silicon Valley Bar Association’s website . You can also get a referral to a lawyer from the Santa Clara County Bar Association . Their phone number is 669-302-7803 . You may also want to refer to our Free & Low-Cost Legal Aid page .

Understanding Joint Tenancy in California

In an earlier post, we discussed why your beneficiaries would think Avoiding Probate is an excellent idea.

We also discussed how certain Assets Not Subject to Probate can avoid the Probate process, including those assets that qualify for the California Small Estate Affidavit procedure, or Assets that Pass by Operation of Contract .

Now, we will examine the concept of Joint Tenancy, and whether it makes sense to use Joint Tenancy as a means to Avoid Probate .

What is Joint Tenancy with Right of Survivorship?

Joint Tenancy, or Joint Tenancy with Right of Survivorship, is a legal designation that allows certain assets to go to the surviving Joint Tenant without being subject to Probate.

People use Joint Tenancy because it is easy to set up. All that is necessary is for the financial account or real property deed to reflect that there is joint ownership with right of survivorship.

What are the Disadvantages of Joint Tenancy with Rights of Survivorship?

• Both Joint Tenants are co-equal Owners, there can be no disproportional ownership (i.e. 1/3 owned by Person A, and 2/3 by Person B)
• Because all Joint Tenants legally own all of the property, the entire property is subject to the Creditors of any Joint Tenant
• Assets owned in Joint Tenancy do not get a full Step-up-in-Basis (for capital gains tax purposes) at the death of a Joint Tenant.
• A Joint Tenant’s Interest in the Property may only be left to the surviving Joint Tenant – they may not leave it to their children, their Trust or Estate or any non-Joint Tenant.
• Joint Tenancy ends after the first transfer of the property. If the other Joint Tenant has died, or dies without naming a new Joint Tenant, the property may be subject to Probate
• If all Joint Tenants die at the same time, the asset may be subject to Probate

Joint Tenancy Does Not Allow for Disproportional Ownership

Unlike Tenancy in Common, Joint Tenancy does not allow for disproportional ownership of the asset. Each and every Joint Tenant owns the entire asset.

If one Owner of the Property has contributed more (or less) financially to the purchase of the asset, it does not matter. Every Joint Tenant owns the same amount, irrespective of financial (or other) contributions.

With Tenancy-in-Common, by contrast, ownership can be set up in any manner of percentages. If one owner contributes 5% of the purchase price, they can be established as a 5% Tenant-in-Common.

Joint Tenancy Property May Only Be Left to Other Owners, not to Heirs or Beneficiaries

Because Joint Tenancy is equally owned by all of the Joint Tenants, no Owner has a right to dispose of their share of the property to their heirs, beneficiaries or any other person. When the Owner dies they may only leave it to the other Joint Tenants.

You cannot add your share of a Joint Tenancy property to your Living Trust. Doing so would sever the Joint Tenancy and render it void.

Joint Tenancy Property is Subject to the Creditors of All Joint Owners

Because Joint Tenancy is equally owned by all of the Joint Tenants, if any one of the Joint Tenants finds themselves in financial distress, or on the receiving end of a Judgment Order by one or more creditors, the entire Joint Tenancy asset can be seized to satisfy an Order against any single Joint Tenant.

Grandma has one house and no children. She only has one grandchild, and to save money, decides to add her grandchild to her house as a Joint Tenant.

Grandchild has a drinking and gambling problem. One evening, the grandchild gets in a car accident that is their fault, and later has a judgment order placed against them and all of their assets to satisfy the judgment against them.

Legally, Grandma’s house can be sold or transferred to the Creditors of the grandchild, and Grandma could be out on the street. The law of Joint Tenancy says the entire property belongs 100% to both joint tenants. While adding her grandchild could allow her to potentially avoid Probate, the risk of loss may prove unacceptable.

Joint Tenancy Works to get the Property to the Surviving Owners, but Not Beyond That

While one of the main reasons to use Joint Tenancy is to avoid Probate, this is not automatic. One of the little known secrets in Probate Law is that Joint Tenancy assets do not always escape Probate. In fact, it is common for Joint Tenancy property to wind up in Probate Court after the death of the surviving tenant.

Where there are 2 Joint Tenant owners of a property, Joint Tenancy works exactly once. If one Joint Tenant dies, it becomes the property of the surviving owner. If the remaining owner forgets to add the property to their Trust, and they die, it could wind up in Probate. Likewise, if there is a common accident, or both Joint Tenants die at the same time, the asset will almost certainly wind up in Probate.

Joint Tenancy vs Community Property

Joint Tenancy is a form of property ownership in which two or more people share undivided interests in a property. Joint tenants have an equal right to use and enjoy the property, and they also have an equal right to sell or transfer their interest in the property. Joint tenancy is often used by family members or close friends who want to own property together.

Community property is a form of ownership in which husband and wife each own an undivided half interest in all community property. Community property laws are based on the premise that husband and wife equally contribute to the acquisition of property during marriage. These laws are designed to provide economic fairness to both spouses in the event of divorce or death.

From a Capital Gains Tax perspective, owning real estate (or other property) in Community Property has a distinct tax advantage over owning property in Joint Tenancy. If a husband and wife own property as Community Property, and one spouse dies, then the property receives a full stepped up basis for Capital Gains as of the death of the first spouse.

Practically speaking, this means Capital Gains are wiped out at the first death for all assets held in Community Property, or in Community Property with Rights of Survivorship.

By contrast, property held by a married couple in Joint Tenancy does not receive the full stepped up basis for Capital Gains Tax purposes at the death of the first spouse. Property held in Joint Tenancy only receives a one-half stepped up basis at the death of the first spouse. Thus, practically speaking, only half of the Capital Gains are wiped out at the death of the first spouse to die.

Joint Tenancy with Rights of Survivorship Frequently Asked Questions

What is the difference between joint tenancy and tenancy in common in california.

Joint tenancy and tenancy in common are two common types of co-ownership agreements that govern jointly owned property in California.

Joint tenancy requires that all tenants have an equal undivided interest in the property and the right of survivorship, meaning that if one tenant dies, their interest in the property passes to the remaining tenants.

Tenancy in common, on the other hand, allows tenants to own unequal undivided interests in the property with no right of survivorship. This means that if one tenant dies, their interest in the property is not automatically passed on to the remaining tenants.

Tenancy in common may be a better fit for certain situations, such as when co-owners have unequal ownership rights in the property, or when they want to leave their interest in the property to someone other than the other tenant/s.

How do I Break a Joint Tenancy in California?

Breaking (or Severing) a Joint Tenancy in California is relatively simple. Any written or express agreement between the Joint Tenants to no longer hold the property as Joint Tenants should be sufficient. Actions that are inconsistent with the purposes of Joint Tenancy may also sever the Joint Tenancy.

“A mutual agreement between joint tenants that is inconsistent with one or more of the four essential unities of a joint tenancy or that alters the title interests therein may sever the joint tenancy.” – Estate of Blair (1988) 199 Cal.App .3d 161

For real estate, if one Joint Tenant executes and records a Deed putting their share in their own name, or in their own Revocable Trust, the Joint Tenancy is deemed to be severed.

How do you know if your joint account has right of survivorship?

The financial custodian (bank, investment company, etc.) will be able to determine if your jointly held account has a right of survivorship provision.

How do I change joint tenancy to community property with right of survivorship in California?

As it pertains to real estate, there are two equally valid ways of accomplishing this. The first way is to execute and record a deed, transferring the real estate from Husband and Wife as Joint Tenants to Husband and Wife as Community Property with Rights of Survivorship. The second way is to execute a Marital Property Agreement, in which both spouses agree to hold all assets as Community Property, and expressly cancel all Joint Tenancy holdings.

Conclusion: Joint Tenancy carries many risks, many of which are Unnecessary

For many families, the Disadvantages of Joint Tenancy outweigh the benefits, especially when a Living Trust can accomplish the same objectives without the downside.

We believe the Living Trust remains the best option for helping your family avoid Probate.

We invite you to Contact Our Firm to discuss your family’s Estate Planning needs.

John Erik Fraker, Esq.

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Understanding Tenants in Joint and Tenancy in Common: A Comprehensive Guide

Introduction

When more than one person owns property together, the legal arrangement governing their ownership is crucial. Two common forms of co-ownership are joint tenancy and tenancy in common. This comprehensive guide will help you understand these concepts, their differences, and their implications for property ownership. Whether you’re considering purchasing property with family members, friends, or business partners, or you’re simply curious about property law, this guide will provide valuable insights.

Joint Tenancy Definition: The Basics

Joint tenancy is a form of property ownership where two or more people own equal and undivided shares of a property, known as equal interest. This type of ownership is often chosen by married couples, close family members, or business partners who want a straightforward ownership arrangement. Key features of joint tenancy include:

• Equal ownership interests
• Right of survivorship
• Simultaneous acquisition of title

Right of Survivorship

The most distinctive feature of joint tenancy is the right of survivorship. When one joint tenant dies, their ownership interest automatically passes to the surviving joint tenant. This transfer happens outside of probate, making it an attractive option for many co-owners who want to avoid the lengthy and potentially costly probate process.

For example, if three friends own a vacation home as joint tenants and one passes away, the two surviving friends would automatically inherit the deceased friend’s share. The property wouldn’t go through probate, and the deceased friend’s will wouldn’t affect the property’s ownership.

Creating Joint Tenancy

To create a valid joint tenancy, joint tenants acquire their interests:

• At the same time
• By the same deed or will
• With equal ownership rights

These requirements, known as the “four unities” in legal terms, are:

• Unity of time: All owners must receive title simultaneously
• Unity of title: All owners must receive title via the same document
• Unity of interest: All owners must have equal shares
• Unity of possession: All owners must have equal rights to possess the entire property

If any of these unities are broken, the joint tenancy may be severed, converting it to a tenancy in common.

Financial Implications for Joint Tenants

Joint tenancy has significant financial implications for joint tenants. As co-owners, joint tenants are equally responsible for the financial obligations associated with the property, including mortgage payments, property taxes, and maintenance costs. If one joint tenant fails to contribute to these expenses, the other joint tenants may be held responsible for covering the shortfall. Additionally, joint tenants may be liable for each other’s debts, which can impact their individual credit scores. It is essential for joint tenants to have a clear understanding of their financial responsibilities and to communicate regularly to avoid any potential issues.

Severing a Joint Tenancy

A joint tenancy can be severed in several ways, including:

• Voluntary agreement: Joint tenants can agree to terminate the joint tenancy and convert it to a tenancy in common.
• Conveyance: One joint tenant can transfer their interest in the property to a third party, which can sever the joint tenancy.
• Partition: A court can order the partition of the property, which can result in the severance of the joint tenancy.

Severing a joint tenancy can have significant consequences, including the loss of the right of survivorship and the potential for disputes among the co-owners. It is essential for joint tenants to seek professional advice before severing a joint tenancy.

Tenancy in Common: An Overview

Joint ownership can take the form of tenancy in common or joint tenancy, but there are key differences that make tenancy in common more flexible:

• Owners can have unequal shares
• No right of survivorship
• Interests can be acquired at different times

Flexibility in Ownership

One of the primary advantages of tenancy in common is the flexibility it offers in terms of ownership shares. Tenants in common can own different percentages of the property. For example, one tenant might own 70% while another owns 30%. This flexibility makes tenancy in common an attractive option for investment properties or situations where co-owners contribute unequal amounts to the property purchase.

Inheritance and Tenancy in Common

When a tenant in common dies, their share passes to their heirs or as specified in their will, not automatically to the other co-owners. This means that the deceased owner’s share becomes part of their estate and goes through the probate process. The deceased owner’s heirs or beneficiaries then become tenants in common with the surviving owners.

Key Differences: Joint Tenancy vs. Tenancy in Common

Understanding the differences between these two forms of ownership is crucial for making informed decisions about property ownership:

Survivorship rights: According to the joint tenancy definition, joint tenancy includes a right of survivorship, while tenancy in common does not.

Equality of shares: Joint tenants must have equal shares, while tenants in common can have unequal ownership interests.

Transfer of ownership: Joint tenants’ interests automatically transfer to surviving owners upon death, while a tenant in common’s interest becomes part of their estate.

Creation requirements: Joint tenancy requires the four unities, while tenancy in common does not have these strict requirements.

Severability: A joint tenant can unilaterally sever the joint tenancy, converting it to a tenancy in common, while tenancy in common has no such provision.

Advantages and Disadvantages

Joint Tenancy

• Avoids probate, saving time and money
• Simplifies estate planning
• Clear line of succession for property ownership
• Can provide security for married couples or long-term partners
• Requires a joint tenancy agreement, which necessitates consensus among owners regarding property-related decisions
• Less flexibility in ownership structure
• Potential tax implications, especially for non-spouse joint tenants
• Creditor claims against one owner could affect all owners
• Inability to pass property to heirs through a will

Tenancy in Common

• More flexibility in ownership shares
• Freedom to dispose of interest as desired, including through a will
• Ability to sell or mortgage individual shares without other owners’ consent
• Suitable for business partnerships or investment properties
• No automatic right of survivorship, potentially leading to unintended co-ownership situations
• Potential for disputes among co-owners, especially with unequal shares
• Each owner’s share is subject to probate upon death
• Possible partition actions if co-owners disagree on property use or sale

Practical Implications of Property Ownership

Property Management

The type of co-ownership can significantly impact how property decisions are made:

• Joint tenants typically make decisions together, as they have equal rights to the entire property. Major decisions usually require unanimous agreement.
• Tenants in common may have more individual control over their share, but decisions affecting the entire property often require majority agreement.

Selling or Transferring Property

The process of selling or transferring property differs between the two ownership types:

• Joint owners, or joint tenants, must usually act together to sell the entire property. However, individual joint tenants can sell or transfer their interest, which severs the joint tenancy and creates a tenancy in common with the new owner.
• Tenants in common can sell their share independently without the agreement of other co-owners. However, finding a buyer for a partial interest in property can be challenging.

Creditors and Joint Tenancy

Creditors can pursue the property to collect debts from one joint tenant, which can impact the other joint tenants. If one joint tenant has outstanding debts, creditors may place a lien on the property or force the sale of the property to collect the debt. This can result in the other joint tenants losing their interest in the property or being required to pay off the debt. Joint tenants should be aware of the potential risks associated with joint tenancy and take steps to protect their interests.

Related Terms: surviving owner, owner passes, legal ownership, lengthy legal process, other joint tenant, co owning property, probate court, owner dies, owned jointly, investment partners

Alternatives to Joint Tenancy

There are several alternatives to joint tenancy, including:

• Tenancy in common: This type of co-ownership allows multiple individuals to own a property together, but each owner has a separate and distinct share.
• Community property: This type of co-ownership is available in some states and allows married couples to own property together with equal rights and interests.
• Limited liability company (LLC): This type of business structure allows multiple individuals to own a property together, but each owner has limited personal liability.
• Trust: This type of ownership allows an individual to hold property for the benefit of another person or entity, which can provide tax benefits and protection from creditors.

Each of these alternatives has its own advantages and disadvantages, and it is essential for individuals to seek professional advice before choosing an alternative to joint tenancy.

Case Law Examples

• California Supreme Court case
• Established that a joint tenant can unilaterally sever the joint tenancy by granting their interest to themselves as a tenant in common
• This decision simplified the process of severing joint tenancies in California
• California Court of Appeal case
• Clarified the requirements for creating a valid joint tenancy
• Emphasized the importance of clear language in deeds to create joint tenancy
• Ruled that a lease of a joint tenant’s interest severs the joint tenancy
• Highlighted the various ways joint tenancy can be terminated

Did You Know?

• Joint tenancy is often used by married couples to ensure the surviving spouse automatically inherits the property
• Some states have a presumption of tenancy in common unless joint tenancy is explicitly stated in the deed
• Joint tenancy can be severed by one owner without the consent of others, potentially without the other owners’ knowledge
• In some jurisdictions, joint tenancy between non-married individuals may have different tax implications than joint tenancy between spouses
• The concept of tenancy by the entirety, a special form of joint tenancy for married couples, exists in some states but not in California
• Tenancy joint allows co-owners to manage property shares equally, addressing the equitable distribution of financial responsibilities and benefits among joint tenants
• Q: Can joint tenants have unequal ownership interests? A: No, joint tenants must have equal ownership interests. If you want unequal shares, tenancy in common would be more appropriate.
• Q: Does tenancy in common avoid probate? A: No, a deceased tenant in common’s share goes through probate. Only joint tenancy offers automatic transfer outside of probate.
• Q: Can business partners use joint tenancy? A: While possible, tenancy in common is often more suitable for business partnerships due to its flexibility and the ability to have unequal shares.
• Q: How does mortgage responsibility work in joint tenancy? A: Typically, all joint tenants are equally responsible for mortgage payments, regardless of their financial contributions.
• Q: Can a joint tenant leave their share to someone in their will? A: No, the right of survivorship in joint tenancy overrides any contrary provisions in a will. The property automatically passes to the surviving joint tenants.
• Q: How can a joint tenancy be severed? A: A joint tenancy can be severed by mutual agreement, by one tenant transferring their interest to a third party, or by a joint tenant transferring their interest to themselves as a tenant in common.
• Q: Are there any tax advantages to joint tenancy? A: For married couples, joint tenancy can offer certain tax advantages, particularly regarding estate taxes. However, for non-married individuals, joint tenancy might have less favorable tax implications compared to tenancy in common.

Understanding the nuances of joint tenancy and tenancy in common is crucial for anyone considering co-ownership of property. While joint tenancy offers simplicity and avoids probate, tenancy in common provides more flexibility in ownership structure and disposition of property interests . Your choice should depend on your specific circumstances, long-term goals, and relationship with co-owners.

Factors to consider when choosing between joint tenancy and tenancy in common include:

• Your relationship with co-owners
• Your estate planning goals
• The need for flexibility in ownership shares
• Tax implications
• Potential creditor issues
• Long-term plans for the property

Remember, while this guide provides a comprehensive overview, property law can be complex and varies by jurisdiction. Always consult with a qualified legal professional before making decisions about property ownership to ensure your interests are protected and your goals are met. With careful consideration and proper legal guidance, you can choose the co-ownership structure that best suits your needs and provides a solid foundation for your property ownership journey.

Related Terms: co owner, joint owner, deceased owner , real property, property passes, deceased owner’s will, surviving tenant, or her interest, estate plan, undivided interest , co ownership agreement

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Suggestions

Assignment of a tenancy

When a tenant can transfer their tenancy to another person using an assignment by deed.

What is tenancy assignment?

Council tenancy assignment rights, assured or assured shorthold tenancy assignment rights, regulated tenancy assignment rights, deed of assignment, liability for rent arrears after assignment.

Assignment is when a tenant transfers their tenancy to another person. A tenancy is assigned using a deed.

A tenant might use assignment to:

pass on their tenancy before their death

transfer their tenancy after a relationship breakdown

swap homes with another tenant by mutual exchange

The person who is assigned the tenancy becomes the tenant of the landlord under the same agreement.

A tenant's right to assign depends on their tenancy type.

A secure or flexible tenant can only assign their tenancy if either: [ 1 ]

they assign by mutual exchange

they assign to a potential successor

the court orders assignment in family law proceedings

A flexible tenancy is a type of secure tenancy granted for a fixed term.

When a flexible tenant assigns their tenancy the fixed term continues. For example, if they assign the tenancy three years into a five year fixed term, the assignee has two years remaining on the tenancy.

An introductory tenant can only assign under family law proceedings or to a potential successor. [ 2 ] A demoted tenant can only assign under family law proceedings. [ 3 ]

An attempt to assign for any other reason does not transfer the tenancy. The tenancy remains with the original tenant. If the original tenant moves out and no longer occupies the property as their only or principle home, the landlord can end the tenancy by serving a notice to quit.

Social tenancy mutual exchange

Secure and flexible tenants can swap their tenancy with another social tenant in some cases. Mutual exchanges can only happen with the consent of both landlords.

Find out more about mutual exchange .

Assignment to a potential successor

Some people have a right to succeed to a tenancy when the tenant dies. For example, their spouse or another family member. The successor inherits the tenancy.

A sole tenant can assign their tenancy before their death rather than wait for a succession. They must assign it to someone who would qualify to succeed if the tenant died. [ 4 ] Find out more about who qualifies for council tenancy succession .

A joint tenant cannot assign to a potential successor. [ 5 ] When a joint tenant dies, the surviving tenant inherits the tenancy by survivorship. [ 6 ]

The assignment must happen while the property is the original tenant's only or principal home. The tenancy loses its security of tenure if the tenant moves out before assignment.

An assignment to a potential successor counts as a succession. There can usually be no further succession when the new tenant dies. [ 7 ]

Assigning to a potential successor prevents the landlord from obtaining possession on ground 15A for underoccupancy. The landlord can only use ground 15A after a succession. Find out more about ground 15A .

Assignment in family law proceedings

The court can order tenancy assignment in family law proceedings. [ 8 ] For example, during divorce proceedings.

This might change a joint tenancy to a sole tenancy, or sign a tenancy over to the person who still lives in the property.

When the tenant needs their landlord's consent to assign

A tenant must have their landlord's consent for a mutual exchange to swap their tenancy. Read more about mutual exchanges .

When assigning to a potential successor or in family law proceedings, the tenant does not need their landlord's agreement to assign unless their tenancy says consent is required. Where this is a term in the tenancy, the tenant should ask their landlord for consent before assignment. They should state they are asking as a formality, because they are exercising a statutory right to assign and the landlord must not unreasonably withhold consent. [ 9 ]

When the tenancy requires consent and the tenant assigns without their landlord's agreement, the landlord might start possession proceedings for a breach of the tenancy. They can serve a notice on a discretionary ground. The court should consider whether it is reasonable to order possession when the tenant correctly assigned using a statutory right.

Find out more about secure tenancy grounds for possession .

An assured or assured shorthold tenancy can be assigned if either:

a housing association tenant assigns their tenancy by mutual exchange

a tenant assigns the tenancy in line with their tenancy terms

Fixed term tenancy

Most tenancies start with an initial fixed term period, such as six months.

Where a tenancy does not mention assignment, the tenant can assign without their landlord's consent.

Where it allows assignment with consent, the tenant needs their landlord's agreement to assign and the landlord cannot unreasonably withhold consent [ 10 ]

Statutory periodic tenancy

A statutory periodic tenancy starts automatically when a fixed term expires.

The tenant needs their landlord's consent to assign. The landlord can refuse for any reason. [ 11 ]

Contractual periodic tenancy

Some tenancies start as periodic with no fixed term, or state they continue as periodic after a fixed term. These are contractual periodic tenancies.

Where the agreement does not mention assignment, the tenant needs the landlord's agreement to assign and the landlord can refuse for any reason. [ 12 ]

Where it allows assignment with consent, the the tenant needs the landlord's agreement to assign and the landlord cannot unreasonably withhold consent. [ 13 ]

A premium is a payment for a tenancy other than rent. A premium includes a tenancy deposit greater than two months' rent. [ 14 ] Where a contractual periodic tenant paid a premium and the tenancy does not mention assignment, the tenant can assign without their landlord's consent.

When a landlord unreasonably withholds consent

When a fixed term or contractual periodic tenancy allows assignment with consent, the tenant can apply for consent in writing. The landlord must reply within a reasonable time. If they refuse to consent, they must give reasons. [ 15 ] The landlord cannot refuse unreasonably.

What is considered unreasonable depends on the facts. [ 16 ] For example, the courts held it is reasonable to withhold consent when the existing tenant has arrears or the new tenant is not financially sound. [ 17 ]

Assignment without the landlord's consent

A tenant might need their landlord's agreement but decide to assign without consent. The assignment happens if the tenant uses a deed, but the tenant has breached their tenancy agreement. [ 18 ]

The landlord can start possession proceedings for a breach of the tenancy. They can serve a notice on a discretionary ground. At the court hearing, the court must be satisfied it is reasonable to grant possession.

Find out more about assured tenancy grounds for possession .

A regulated tenancy has two stages:

the initial contractual tenancy, which can be for a fixed term or periodic

the statutory tenancy that starts when the contractual tenancy ends

Landlords have not been able to grant new regulated tenancies since 1989 so most tenants now have statutory tenancies.

Find out more about regulated tenancies .

Contractual regulated tenancy

A tenant can assign their contractual tenancy with their landlord's consent. If the tenant does not get consent the landlord can seek possession. [ 19 ] A landlord can consent after assignment. [ 20 ]

Statutory regulated tenancy

A statutory tenancy can only be assigned by the court in family law proceedings.

A statutory tenant can request a transfer, where one statutory tenant is substituted for another. [ 21 ] The landlord must give consent and can refuse for any reason.

A tenancy should be assigned using a valid deed. [ 22 ]

The document must be labelled as a deed and signed by each party. It must include the:

name and address of the original tenant

name and address of the new tenant

words "signed as a deed"

landlord's details

An independent person must witness the signatures of the original tenant and new tenant, and sign the document as a witness. The same person can witness all the signatures.

Both tenants should keep a copy of the deed to prove the assignment happened.

Assignment without a deed

In most cases, a tenancy is not assigned if a deed is not completed. [ 23 ]

An assignment could still be valid if the parties intend to assign a tenancy but the deed is not executed correctly. [ 24 ] This is called equitable assignment. If there is a dispute between the parties or with the landlord, the court must decide if the assignment is valid.

The new tenant is not liable for rent arrears that accrued before they took over the tenancy. [ 25 ] In most cases they are liable for rent arrears that accrue after assignment. [ 26 ]

The original tenant is liable for arrears existing at the time of assignment. They might be liable for rent arrears accrued after assignment where either:

the tenancy started before 1 January 1996

they agreed to act as a guarantor for the new tenant

the tenancy agreement prohibits assignment and the landlord did not agree to assignment

The landlord could make a claim against the original tenant for arrears that accrued after the assignment. The landlord must notify the original tenant of the arrears on a prescribed form within six months of the arrears falling due. [ 27 ]

Last updated: 29 August 2024

s.91 Housing Act 1985.

s.134 Housing Act 1996.

s.143K Housing Act 1996.

s.91(3)(c) Housing Act 1985; Burton v Camden LBC [2000] UKHL 8; Peabody Donation Fund Governors v Higgins [1983] 1 WLR 1091.

Burton v Camden LBC [2000] UKHL 8.

Solihull MBC v Hickin [2010] EWCA Civ 868.

s.88(1)(d) Housing Act 1985.

under s.23A or s.24 Matrimonial Causes Act 1973, or under s.17(1) Matrimonial and Family Proceedings Act 1984, or under para 1, Schedule 1 Children Act 1989.

s.19(1) Landlord and Tenant Act 1927.

s.19(1)(a) Landlord and Tenant Act 1927.

s.15 Housing Act 1988.

s.15(1) and 15(2) Housing Act 1988.

s.15(3) Housing Act 1988; s.19(1)(a) Landlord and Tenant Act 1927.

s.15(4) Housing Act 1988.

s.1 Landlord and Tenant Act 1988.

Braun v Westminster Anglo-Continental Investment Co Ltd [1975] 240 EG 927.

Greenwood Reversions Ltd v World Environment Foundation Ltd and Mehra [2008] EWCA Civ 47; Gibbs and Houlder Bros and Co. Ltd Lease, Houlder Bros and Co. v Gibbs [1925] Ch 575, CA.

Sanctuary Housing Association v Baker (1997) 30 HLR 809.

Ground 6, Sch.15 Rent Act 1977; Regional Properties Company v Frankenschwerth [1951] 1 KB 631

Hyde v Pimley [1952] 2 QB 506

para 13, Schedule 1, Rent Act 1977.

s.52 Law of Property Act 1925.

Crago v Julian [1992] 24 HLR 206, CA; Crago v Julian (1991) 24 HLR 306 CA.

s.2 Law of Property (Miscellaneous Provisions) Act 1989.

s.17 Landlord and Tenant (Covenants) Act 1995.

s.5 of the Landlord and Tenant (Covenants) Act 1995

Joint Tenancy in California

Joint Tenancy with Right of Survivorship

A joint tenancy is a type of co-ownership in California wherein all parties own equal shares of a property. A property owned by joint tenants is “owned by two or more persons in equal shares, by a title created by a single will or transfer, when expressly declared in the will or transfer to be a joint tenancy, or by transfer from a sole owner to himself or herself and others, or from tenants in common or joint tenants to themselves or some of them, or to themselves or any of them and others, or from spouses, when holding title as community property or otherwise to themselves or to themselves and others or to one of them and to another or others, when expressly declared in the transfer to be a joint tenancy, or when granted or devised to executors or trustees as joint tenants.” California Civil Code 683(a).

Importantly, joint tenants also benefit from a “right of survivorship,” meaning that if one party dies, their interest passes to the surviving co-owner(s). Indeed, “…when one joint tenant dies, the entire estate belongs automatically to the surviving joint tenant(s).”  Grothe v. Cortlandt Corp.  (1992) 11 Cal.App.4th 1313, 1317. The right of survivorship is powerful and can help bypass probate or other expensive procedures after a joint tenant passes away.

A joint tenancy is also unique in that is “requires unity of interest, unity of title, unity of time, and unity of possession.”  McDonald v. Morley  (1940) 15 Cal. 2d 409, 412. Requiring these four unities together means that a joint tenancy is intentional. For these reasons as well as the strength of the right of survivorship, a joint tenancy is extremely powerful and is not considered the default manner of holding title in California.

Joint Tenancy vs. Tenancy in Common

A tenancy in common is simply a form of ownership in which a property is “owned by several persons, not in joint ownership or partnership.” California Civil Code 685. Generally, “[a]n interest created in favor of several persons is presumed to be a tenancy in common…” (a) [§ 39] In General., 12 Witkin, Summary 11th Real Prop § 39 (2023). A tenancy in common is the default form of co-ownership in California, as opposed to a joint tenancy which requires intention. Additionally, a tenancy in common has no right of survivorship. The interests of a tenant in common who passes away must go through the normal asset distribution process (i.e. probate).

Can a Joint Tenant Sell Their Share of a Property?

A joint tenant can sell their interest in a property at any time. However, there are few (if any) buyers looking to purchase partial interests in a property. Joint tenants looking to get out of a co-ownership relationships but have uncooperative co-owners who refuse to sell may choose to instead force the sale of the entire property by filing a partition action . A partition action allows all co-owners, including joint tenants, to receive their equitable interest in the property with or without the consent of their co-owners.

Joint Tenancy in a Partition Action

When joint tenants are involved in a partition action, there may be a presumption that all owners are entitled to the same amount and reimbursement is not available. This is known as a “ true joint tenancy ” in which co-owners “contributed significant financial resources and nonfinancial efforts to the acquisition of the home, furnishings, appliances, improvements, decoration and landscaping.”  Milian v. De Leon  (1986) 181 Cal.App.3d 1185, 1195-1198. Offsets are disallowed only in a true joint tenancy, which presumes that the co-owners “agreed to own [the property] equally irrespective of their individual contributions to the purchase price and expenditures for improvements to and maintenance and preservation of the property.”  Milian v. De Leon  (1986) 181 Cal.App.3d 1185, 1191. Indeed, a “true joint tenancy” is analogous to community property in a marriage where each party has an equal ownership interest in the property despite potentially lopsided individual contributions.

Joint Tenants Generally Hold Equal Shares

As California Jurisprudence explains: “Joint tenants hold their interests in the property in equal shares.” Common law and statutory requisites of creation—Unity of interest, 4 Cal. Real Est. (Miller & Starr, 4th ed.) § 11:25. The law is that “A joint interest is one owned by two or more persons in equal shares….” Civ. Code § 683(a). As one court explained: “One of the characteristics of joint tenancy is the equality of the interest held by the respective tenants,” citing “Civ. Code § 683.” Stark v. Coker (1942) 20 Cal. 2d 839, 844.

Miller & Starr explains Civil Code 683(a) as follows: “A joint tenancy in real property consists of an estate owned jointly in undivided equal shares by two or more persons…. Each joint tenant is vested with title to an undivided equal share of the joint tenancy property, but this interest, being undivided, runs to the entire property.” Characteristics; creation, 4 Cal. Real Est. (4th ed.) § 11:22.

“[A] joint tenancy deed…creates a rebuttable presumption that it is held in joint tenancy. The presumption created by the deed cannot be overcome by testimony of the hidden intentions of one of the parties, but only by evidence tending to prove a common understanding or an agreement that the character of the property was to be other than joint tenancy.” Machado v. Machado (1962) 58 Cal.2d 501, 506. This “presumption arising from the form of the deed may not be rebutted solely by evidence as to the source of the funds used to purchase the property.” Gudelj v. Gudelj (1953) 41 Cal.2d 202, 212.

This dovetails with the burden under Evidence Code 662 that: “The owner of the legal title to property is presumed to be the owner of full beneficial title. This presumption may be rebutted only by clear and convincing proof.”

Joint Tenants with Unequal Shares

Sometimes, the ownership interests of co-owners are unclear from the deed , perhaps due to unequal down payments , or the ownership percentages are otherwise disputed.

For example, in Cosler v. Norwood (1950) 97 Cal.App.2d 665, 666, the trial court decreed that the plaintiff owned a one-fourth interest in the real property and that defendant owned a three-fourths interest based on their proportional unequal payments toward the purchase of the property. The court found that: “There is no merit in plaintiff’s contention that since the title to the real property was taken in the names of the parties as joint tenants defendant is estopped to claim that she has more than one-half interest in the property.” Cosler v. Norwood (1950) 97 Cal.App.2d 665, 666.

Offsets in a Partition Action when Property is Owned by True Joint Tenants

A partition action generally allows for an accounting of offsets . This includes reimbursements for improvements , repairs , down payments , mortgage payments, and other unequal contributions to the shared property. However, if the court finds that a true joint tenancy exists, it “may not order reimbursement or contribution on account of differences in the amounts the parties have paid toward the initial acquisition of the property.”  Milian v. De Leon  (1986) 181 Cal.App.3d 1185, 1195. This can greatly affect the outcome of a partition action as offsets are often one of the most hotly disputed topics throughout the lawsuit. However, most joint tenants are not “true joint tenants,” meaning most courts will allow offsets. The true joint tenancy is a fact intensive analysis that should be completed by a partition attorney .

How to Sever a Joint Tenancy

California Civil Code states that: “a joint tenant may sever a joint tenancy in real property as to the joint tenant’s interest without the joinder or consent of the other joint tenants…” California Civil Code 683.2(a). Indeed, a joint tenant may sever a joint tenancy at any time during the life of the other joint tenant(s), thereby making all co-owners tenants in common. Joint tenants would complete a deed to sever joint tenancy and file this in the county in which the property is located.

How Talkov Law’s Partition Attorneys Can Help

If you are looking to sell your jointly owned property but your co-owner refuses to cooperate, a partition action may be a suitable remedy for your co-ownership woes. Talkov Law is dedicated to helping joint tenants like you end unbalanced co-ownership relationships and receive the equity you are entitled to. With experience handling 400 partition actions throughout California, Talkov Law’s full time partition attorneys are ready to assist you.

If you’re looking to end your co-ownership dispute, contact California’s premier partition action law firm by calling Talkov Law at  (844) 4-TALKOV (825568)  or  sending us a message today .

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About Scott Talkov

Scott Talkov is California's #1 partition lawyer , having handled over 370 partition actions. He founded Talkov Law Corp. after more than one decade of experience at a California real estate litigation firm, where he served as one of the firm's partners. He has been featured on CNN, ABC 7, KCBS, and KCAL-9, and in the Los Angeles Times, the Orange County Register, the San Diego Union-Tribune, the Press-Enterprise, and in Los Angeles Lawyer Magazine. Scott has been rated by Super Lawyers since 2013. He can be reached about new matters at [email protected] or (844) 4-TALKOV (825568) . He can also be contacted directly at [email protected] .

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