By Attorney Jennifer Kahl, June 10, 2019
When someone dies, the first step is to identify the decedent’s assets and determine how the assets are titled. The title of the assets plays a big role in determining the administration of the estate. Most people do not realize that there is more than one type of joint ownership.
Joint ownership with rights of survivorship
Property owned “with rights of survivorship” will belong solely to the surviving owner(s) as each owner dies. Property owned this way is not subject to the terms of the decedent’s Will.
How do you know if joint property is owned with rights of survivorship? If the asset has a title, looks at the title document itself. A vehicle title will say something like, “Smith, John and Nancy Smith, or survivor.” A deed to real estate will specifically say “with rights of survivorship.” In Virginia, if the document does not specifically indicate survivorship, the presumption is that survivorship does not exist. An exception to this rule is bank and other financial accounts. If a financial account is owned jointly and does not specifically indicate the type of joint ownership, survivorship is presumed.
Example: Bob and Ralph own a house together as “joint tenants with rights of survivorship.” Bob has a Will that says everything he owns will go to daughter Sally. When Bob dies, Ralph will be the sole owner of the house. Bob’s Will is irrelevant and Sally has no ownership in the house.
Example: Mom adds her son, George, as a joint owner on her bank account. She does this for convenience so that George can help her pay her bills. Mom has a Will that says everything should be divided amongst her three children. When Mom dies, George will be the sole owner of the bank account. His siblings have no claim to the account.
Tenants in common
If joint property is not owned with survivorship, it is held as “tenants in common.” When one owner dies, his share in the property will pass according to the terms of his Will or by the laws of intestacy (the default succession if someone dies without a will).
How do you know if joint property is owned as tenants in common? As stated above, if the title does not specifically indicate survivorship, the owners are tenants in common. The exception is financial accounts, where survivorship is presumed. Additionally, if owners inherit real estate through another person’s death, the inherit as tenants in common.
Example: Stephanie and Patty own a house as “Joint tenants.” Stephanie is married but has no children or Will. When Stephanie dies, her half interest in the house will pass to her husband.
Example: Mugil and Patricia inherit their parents’ home when Dad dies. They own as tenants in common, even though there isn’t a deed that specifically says this.
Tenants by the entirety
“Tenants by the entirety” is a method of joint ownership reserved for married couples. It includes survivorship and carries additional marital protections. Most married couples own real estate in this way.
How do you know if joint property is owned as tenants by the entirety? Real estate and other property with a title must specifically identify that it is owned as tenants by the entirety. Certain other assets, such as the proceeds from the sale of a home owned as tenants by the entirety, may also be held this way. If a couple divorces, any designation as tenants by the entirety is automatically void and the ownership status become tenants in common.
Example: Mr. and Mrs. Jones own a house as tenants by the entirety. Mr. Jones causes a highway accident and an injured party is successful in obtaining a claim against him. The home is protected against the claim because it is owned as tenants by the entirety and the plaintiff has no claim against Mrs. Jones.
Example: Mr. and Mrs. Lang own a home as “tenants by the entirety with rights of survivorship.” They divorce, but they never retitled the home. Mrs. Lang dies and has a Will that leaves everything to her partner, Brian. Even though the most recent deed still indicates survivorship between Mr. and Mrs. Lang, that was severed when they divorced. Thus, they own as tenants in common and Brian inherits half of the house.
Many people execute a Will and assume that nothing more needs to be done with regards to their estate plan! This could not be farther from the truth. The title of your assets is just as important—if not more so – than your Will. The attorneys at The Heritage Law Group carefully review the title to all of your assets before creating your estate plan. This ensures that your wishes will be honored when you die.