Tenants in Common (TIC) and Joint Tenancy (JT) represent different ways to own property. It is important to determine how you wish to own your property, either as Joint Tenants or Tenants in Common, because the ownership approaches provide different methods for transferring the property when and if the co-owner dies.
While there are several common characteristics that each ownership designation shares, Tenants in Common and Joint Tenants vary in important ways specifically with the probate process. Probate is the legal process of transferring ownership of assets from a deceased individual’s name into the names of beneficiaries. Owning property as Joint Tenants avoids probate automatically while owning as Tenants in Common does not avoid probate unless additional steps are taken. Joint Tenants carry the right of survivorship meaning that when one tenant or owner dies, that owner’s share automatically passes to the surviving tenant by law thus making probate unnecessary.
Important attributes of Tenants in Common include:
- TIC can be created at any time.
- TIC allows two or more people to have an ownership interest in property.
- TIC allows for individuals to own or control equal or different percentages of the total property.
- TIC can give their share of property to anyone after their death.
- TIC do not have right of survivorship and do not avoid probate automatically.
Important attributes of Joint Tenants include:
- Joint Tenants must be created at the same time.
- Joint Tenants must obtain equal shares of a property with the same deed.
- The deceased owner’s interest is automatically transferred to the surviving owner.
- Joint Tenants avoid probate automatically.
How does Tenancy in Common effect property ownership rights?
Tenancy in common is an arrangement in which two or more people have ownership interests in a property, commercial or residential. Tenants in common can own different percentages of the property; however, all of the property is owned equally by the tenants in common group. For example Ann, Bob, and Callie own property as tenants in common. Ann owns 50% of the property and Bob and Callie each own 25% of the property. While they each own a different percentage of the property, they all own the property equally and none of them can individually claim ownership to the property entirely. An individuals ownership percentage is typically correlated with the person’s contributions.
TIC can be created at any time. Considering the example above with Ann, Bob, and Callie. If Ann decides to later split her 50% portion equally with David, all four individuals, Ann, Bob, David, and Callie would own 25% of the property as Tenants in Common.
TIC can also sell or borrow their portion of the property independently, without the consent of the other TIC. Returning to the example above, if Bob decides he no longer wishes to own the property and wishes to sell his portion to Ethan, he can do so without the consent of Ann, Bob, or Callie.
When a tenant in common dies, the property passes to that tenant’s estate. The tenancy in common partner has the right to leave their share of the property to any beneficiary as a portion of their estate. Each independent owner may control an equal or different percentage of the total property. Tenants in Common have no automatic rights of survivorship. Unless the deceased member’s last will specifies that their interest in the property is to be divided among the surviving owners, a deceased tenant in common’s interest belongs to their estate. This type of ownership is popular with owners who do not necessarily want their share to automatically go to the other owners. Owning property as Tenants in Common does not avoid probate, the legal process of transferring ownership of assets from a deceased individual’s name into the names of beneficiaries, unless additional steps are taken.
Dissolving a TIC
To dissolve a Tenancy in Common, one or more co-tenants may buy out the other members. If the co-tenants should develop opposing interests or directions for the property’s use, improvement, or want to sell the property, they must come to a joint agreement to move forward. In cases where an understanding cannot be reached, a partition action may take place. The partition action can be voluntary or court-ordered, depending on how well the co-tenants work together.
If the co-tenants are not adversarial, the court will divide the property via a partition in kind. This is a legal partition proceeding where the court divides the property among the tenancy in common members allowing each member to move forward separately from other members. A partition in kind is the most direct way to divide the property.
Should the co-tenants refuse to work together, they may consider entering into a partition of the property by sale. Here, the property is sold and the proceeds are divided among the co-tenants according to their respective interests in the property.
How does Joint Tenancy effect property ownership rights?
Joint Tenancy must be created at the same time and requires that Joint Tenants obtain equal shares of a property with the same deed. Owning property as Joint Tenants avoids probate automatically because Joint Tenancy carries the right of survivorship. This means that when one tenant or owner dies, that owner’s share automatically passes to the surviving tenant by law thus making probate unnecessary. For example, if A and B own a property as joint tenants, and owner A passes first, owner B will receive ownership of the entire property automatically. Accordingly, owner B will not have to sell the property if they do not wish to. Some states set joint tenancy as the default property ownership for married couples, while others use the tenancy in common ownership model.
Owning property as joint tenants can be useful if you feel there is a risk that someone may apply to the court for further provision from the estate and if you have specific wishes that your family home be protected. If you as the will maker pass before the other owner, the property will not form part of your estate which may be the subject of a claim.
If you have any questions regarding the meaning and effect of holding property as joint tenants or tenants in common, or if you are considering gifting a property to a beneficiary under your will, please do not hesitate to reach out. The attorney at the Skillern Law Firm, PLLC can help. For more information, contact us today at (918) 805-2511 or contact@skillernlaw.com.
