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Are Joint Tenancy and Transfer on Death the Same?

The answer depends on what is meant by “the same.” Both will transfer title to property at death without the need for the property to go through probate, but beyond that they are different.

Joint Tenancy is a form of ownership where two or more people own “undivided interests” in property. In joint tenancy the interests have to be equal: two people, each owns one-half; three people, each owns one-third; and so on. By “undivided” is meant that the property can’t be divided and the parties say, “this half is mine, and that half is yours.”  Upon the death of one of the owners, that person’s share is divided equally among the remaining owners. If there are two owners, the survivor becomes the sole owner. If there were three owners, the two surviving owners split the deceased person’s one-third share and now each owns one-half. Upon the death of the second-to-last owner, the last surviving owner owns the property alone. So if two people own property as joint tenants, upon the death of one, the property automatically (without need for probate) passes to the survivor.

Transfer on Death is where an owner of property makes a deed that says, in effect, upon my death the property goes to X. So upon the death of the owner, X becomes the sole owner exactly as if the original owner and X had owned the property as joint tenants. The result is the same as with joint tenancy.

But that’s the only real similarity between the two. During the lives of both parties, there is a big difference between joint tenancy and transfer on death. In joint tenancy, the other party has a present interest in the property and can deal with that interest. For example, suppose A and B own property as joint tenants. That means that during both A’s and B’s lives, either can use the property, can sell her interest in the property, can rent the property, and can borrow against her interest. It also means that a creditor of either can place a judgment lien against the property and even force a sale of the property.

On the other hand, if A wants B to end up with the property and not have it go through probate, but doesn’t want the risks associated with B’s owning a share of the property, A can make a transfer on death deed naming B as his heir upon A’s death. During A’s life, the property is his alone. B can’t reach the property, nor can B’s creditors.

As with most things in the law, which you use really depends on what you want to accomplish. Joint tenancy and transfer on death deeds are good tools, depending on what you want to do. But in some cases, neither might be right. Always consult an attorney when it comes to planning your estate. If we can help, please contact us.


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