Convert Joint Tenancy to Tenants in Common
Want to convert joint tenancy to tenants in common? First, it's important to understand the difference.3 min read
Want to convert joint tenancy to tenants in common? First, it's important to understand the difference. Joint tenancy and tenancy in common are similar but come with different rights and duties. Joint tenancy includes a right of survivorship that tenants in common do not have. Real property held by joint tenants pass to the surviving tenant or tenants when a joint tenant dies. This means the remaining joint tenant(s) has a right to the entire estate or property even though they only own a share of it.
Four Conditions of Joint Tenancy
- Equal possession is given to all tenants.
- Deed or will is acquired by all tenants.
- Equal interest in the property is owned by all tenants.
- The property was acquired at the same time by all tenants.
If there is a question about joint tenancy or tenancy in common, most courts will assume the contract is a tenancy in common, the more favorable agreement. This is why accurate documentation is important to protect the interests of all owners.
How Does Right of Survivorship Affect Joint Tenancy?
Right of Survivorship means the surviving tenant owns the property when the joint tenant dies.
- Property ownership is immediately transferred to the joint tenant.
- Survivorship avoids probate.
- Heirs are not guaranteed a share. The joint tenant has the right to the entire estate.
Terminating Joint Tenancy
There are options to terminate joint tenancy and retain an interest in the property:
- Convert joint tenancy to tenancy in common.
- Transfer your interest in the property to yourself. Depending on the state where you reside, you might need to use a third person to achieve this transfer. This can be achieved with or without the knowledge of your joint tenant.
- Request judicial partition. A partition by sale occurs when each co-tenant is given their share of profits after the court forces the sale of the property. A partition in kind splits up property between co-tenants equal to their share. The court determines how the land is split and given to each tenant.
Reasons to Create a Tenancy in Common
A tenancy in common ensures your heirs will inherit your share of a property when you die. For example, imagine you are a joint tenant of property with your wife. If you two divorce and you die before converting, your ex-wife is the sole owner of the property even if you planned to leave the property to your children. By terminating a joint tenancy and creating a tenancy in common, your property is transferred to the people you choose instead of your co-tenants.
Legal Advice About Converting Joint Tenancy
Using an experienced property attorney will help when converting your joint tenancy to a tenancy in common. Your attorney will advise you about the process and make sure interest in the property is protected for both tenants. You might also consider a probate attorney to help set up a trust or will to ensure your property is distributed to your beneficiaries in the event of your death.
Changing Your Joint Tenancy to a Tenancy in Common
The easiest way to create a tenancy in common from a joint tenancy is for both people to agree to quitclaim their interests to themselves. This creates a tenant in common agreement.
Otherwise, you can follow the steps outlined below to convert a joint tenancy to a tenancy in common:
- Although not required, hire a title company that will help with the deed modification process.
- Create a new document called a deed transfer. The title company will help construct a deed stating the owners are reverting “interest in the property” to themselves. This creates a tenants in common document and will list the owners' names and the percentage of property they own.
- Each owner will sign the new deed in the presence of a notary, who will make the document official with a stamp. Title companies usually have a notary on their staff.
- Owners will each get a copy of the newly signed deed.
- The deed will be recorded at the courthouse in the county where the property is located. Owners may need to pay a deed filing fee depending on the county.
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