How to Change Joint Tenancy to Tenants in Common in California
Want to know how to change joint tenancy to tenants in common in California? Learn the legal process, tax implications, and how to protect your estate plan. 6 min read updated on February 18, 2025
Key Takeaways:
- Joint tenancy includes the right of survivorship, meaning property passes to surviving tenants automatically.
- Tenancy in common allows heirs to inherit a tenant's share, making it a useful estate planning tool.
- To change from joint tenancy to tenants in common, you need to modify the deed and update the ownership structure.
- California law allows unilateral severance of joint tenancy by recording a deed transfer.
- Proposition 19 can affect tax reassessment when ownership interest is transferred in California.
- Court intervention via judicial partition is an option if co-owners disagree.
- Legal assistance is strongly recommended to ensure proper documentation and compliance with California property laws.
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.
Key Differences Between Joint Tenancy and Tenancy in Common
Ownership Structure and Rights
- Joint tenancy: Each owner has an equal share of the property with a right of survivorship.
- Tenancy in common: Owners can hold unequal shares, and there is no automatic right of survivorship.
Estate Planning Considerations
- Probate avoidance: Joint tenancy avoids probate but may override estate plans.
- Inheritance rights: Tenancy in common ensures your heirs inherit your share.
Financial and Tax Implications
- In joint tenancy, property basis is "stepped up" for tax purposes only for the deceased tenant's share.
- A tenancy in common allows each owner to independently sell or transfer their share.
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.
California Laws on Changing Joint Tenancy
Unilateral Severance in California
- California allows a joint tenant to unilaterally sever the tenancy by recording a deed stating their intent.
- The other co-tenant does not need to consent or even be informed in advance.
- The deed must be recorded with the county recorder’s office to take effect.
Proposition 19 and Property Taxes
- Proposition 19 (California law) affects how property tax reassessments apply to transfers between family members.
- Converting a joint tenancy may trigger a tax reassessment unless an exemption applies.
- Consulting a property or estate attorney is essential to avoid unintended tax consequences.
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.
Judicial Partition and Co-Owner Disputes
If co-owners cannot agree on changing the property title, a partition action may be necessary.
Types of Partition
- Partition by Sale – The court orders the sale of the property, and proceeds are divided among co-owners.
- Partition in Kind – The court physically divides the property if feasible.
A court may favor a sale over physical division, particularly for residential properties.
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.
Estate Planning Benefits of Tenancy in Common
- Ensures inheritance rights for designated beneficiaries.
- Protects property interests from unintended ownership transfers in case of divorce or disputes.
- Allows owners to establish unequal ownership percentages based on financial contributions.
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.
Using a Trust to Hold Tenancy in Common Interests
- Holding a property in a revocable living trust can simplify estate planning.
- A trust can prevent disputes among heirs and ensure smooth inheritance transitions.
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.
Detailed Steps to Change Ownership in California
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Prepare a Grant Deed or Quitclaim Deed
- Clearly state the intent to sever joint tenancy and create a tenancy in common.
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Specify Ownership Percentages
- If ownership shares are not equal, specify the percentage of ownership for each tenant in the deed.
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Sign the Deed Before a Notary
- California law requires notarization for property transfers.
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Record the Deed with the County Recorder
- File the document in the county where the property is located.
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Update Mortgage and Title Insurance
- Inform lenders or title companies if applicable to avoid complications.
Frequently Asked Questions
1. Can I change joint tenancy to tenants in common without my co-owner’s consent?
Yes, in California, a joint tenant can unilaterally sever the joint tenancy by recording a deed.
2. Does changing to tenants in common affect my property taxes?
It may, especially under Proposition 19 in California. Consult a tax professional to determine the impact.
3. What happens if one co-owner refuses to sign a new deed?
If there’s a dispute, the matter may need to be resolved through a partition lawsuit.
4. How long does it take to change joint tenancy to tenants in common in California?
The process can be completed within weeks, depending on how quickly the deed is recorded.
5. Should I hire a lawyer to convert my property title?
Yes, an attorney ensures that the deed is properly drafted and recorded to avoid future legal issues.
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