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What Is a Joint Tenancy with Right of Survivorship?

The surviving party of a joint tenancy is required to complete an affidavit to claim his or her right to a property.
Joint tenancy with rights of survivorship are typically used when a couple buys a piece of real estate together.
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  • Written By: Jodee Redmond
  • Edited By: Bronwyn Harris
  • Last Modified Date: 12 November 2014
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Joint tenancy with right of survivorship is a way of holding title to a property. In this form of ownership, two people have an equal share of the property. This is a popular form of ownership for married couples who choose to purchase a home or cottage together. When one of the property owners dies, his or her interest in the property passes to the other owner automatically, without the necessity of the matter having to go through probate. The survivor is required to fill out an affidavit of death to establish his or her claim as legal owner of the property.

The affidavit of death of joint tenant document lists the name of the deceased and a description of the property he or she owned. A copy of the death certificate is attached to the affidavit. The document is signed by the survivor, who swears that all the contents of the document are true.

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The advantage to holding title in this manner lies in the fact that it is simple and convenient for the title transfer to be competed after one of the owners passes away. If the matter has to go through probate, that will mean a delay and extra expenses for the estate. Another reason why a couple may wish to consider this form of property ownership is that once the title passes to the survivor, it is protected from any claims the deceased's creditors have against his or her estate.

When two people are considering taking title in the form of joint tenancy with right of survivorship, they need to understand that this decision is irrevocable once it has been made. Once the property has been bought, each person's interest can be subject to claims made by creditors. When the property ownership is transferred from the deceased person's estate to the survivor, it is considered a gift. As such, it is taxable as of the date of the transfer of ownership.

Joint tenancy with right of survivorship should be considered carefully if the property owners live in a community property state in the United States. In some cases, the court has determined that taking title as joint tenants means the property is not considered community property. This designation may mean that the surviving owner will be required to pay estate taxes on the value of the property.

People who are considering buying property together should consider how they want to take ownership before the transaction is completed. An attorney can explain this option fully and answer any questions they have. The decision of whether to choose joint tenancy with right of survivorship is not one that should be taken lightly.

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