joint tenants with the right of survivorship (jtwros)

What Is Joint Tenancy With Right of Survivorship in California?

Updated on October 21, 2024

When individuals consider property ownership, especially in real estate, they often encounter various forms of joint ownership. One of the most significant and commonly misunderstood concepts is “Joint Tenancy with Right of Survivorship” (JTWROS).

This ownership arrangement has distinct legal implications, particularly regarding what happens to the property upon the death of one of the owners. To fully grasp its importance, it’s essential to compare it with other forms of joint ownership, such as Tenancy in Common,  and Community Property.

In this article, we will explore what JTWROS entails, how it differs from other forms of ownership, and the benefits and drawbacks of each, with a special focus on how JTWROS works in California compared to other states.

What Does Joint Tenancy with Right of Survivorship & “JTWROS” Mean?

Joint Tenancy with Right of Survivorship (JTWROS) is a legal arrangement where two or more individuals own property equally.

The defining feature of JTWROS is the “right of survivorship,” meaning that if one joint tenant dies, their share of the property automatically transfers to the surviving joint tenants.

This transfer happens without the need for probate, making JTWROS an attractive option for those looking to avoid the often lengthy and expensive probate process. JTWROS requires all joint tenants to have an equal interest in the property, which includes equal rights to use, possess, and enjoy the property.  

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In other words, it is almost a form of estate planning.  To effectuate the transfer of ownership following the death of a co-tenant, the surviving owner simply records an affidavit of the death of joint tenant.

What is Joint Tenancy with Right of Survivorship?

Joint Tenancy with Right of Survivorship

JTWROS is a popular choice among couples, family members, or business partners who want to ensure that the property remains with the surviving owners after one’s death.

For example, in a marriage, JTWROS allows the surviving spouse to automatically inherit the deceased spouse’s share of the property, simplifying the transfer of ownership.

However, it’s crucial to understand that while JTWROS avoids probate, it may not protect the property from creditors of the deceased.

Creditors can still claim the deceased’s share of the property to satisfy outstanding debts, potentially complicating the survivorship process.  

Moreover, when creating a joint tenancy it is often simply referred to as a joint tenancy without mention of the right of survivorship because that right is automatic with a joint tenancy.

Tenants in Common (Also Called Tenancy in Common)

In contrast to JTWROS, Tenancy in Common (TIC) allows multiple owners to hold unequal shares in a property. Each tenant in common owns a specific portion of the property, which can be sold, transferred, or bequeathed to heirs independently of the other owners.

Unlike JTWROS, there is no right of survivorship in TIC; upon the death of a tenant, their share of the property passes to their heirs or as dictated by their will or their other estate plan, and not to the surviving co-owners.

TIC is often used in situations where co-owners want to maintain flexibility in how their portion of the property is handled upon their death.

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Typically, a tenancy in common occurs where there co-owners are not family and maintain a separate identity.

Joint Tenants vs. Community Property

While both JTWROS and Community Property deal with joint ownership, they differ significantly in terms of legal structure and application. Community Property is a legal concept used in some states, such as California and Texas, where all property acquired during a marriage is considered equally owned by both spouses, regardless of who earned the income or whose name is on the title. Unlike JTWROS, which can apply to any co-owners, Community Property specifically pertains to married couples. Joint tenancy is used more frequently with unmarried partners whether romantically involved or not.

How Does JTWROS Work in California and How Does It Compare to Other States?

In California, Joint Tenancy with Right of Survivorship is a common form of property ownership, especially among married couples and close family members.

California law recognizes JTWROS as a way to ensure that property passes seamlessly to surviving joint tenants without the need for probate.

However, California also offers Community Property with Right of Survivorship as an alternative, which combines the benefits of both JTWROS and community property, allowing married couples to enjoy the right of survivorship while maintaining community property rights.

Compared to other states, California’s approach to JTWROS is fairly standard, though the state’s option for Community Property with Right of Survivorship is somewhat unique.

In states that do not recognize community property laws, JTWROS remains a primary tool for couples and other co-owners to ensure smooth property transfer upon death.

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In contrast, states that recognize Tenants by the Entirety often see this form of ownership used more frequently by married couples due to its added protections against individual creditors.

It’s important to note that while JTWROS provides a clear path for property succession, the specifics can vary slightly based on state laws, making it crucial to understand how these laws apply in your state.

A Final Word About Joint Tenancy in California

Understanding the nuances of Joint Tenancy with Right of Survivorship and how it compares to other forms of joint ownership is essential for anyone involved in property ownership, whether in real estate or other types of assets.

Each type of joint ownership—JTWROS, Tenancy in Common, and Community Property—has its own legal implications, benefits, and drawbacks. The choice between them depends on individual circumstances, such as marital status, the number of co-owners, and the desire to avoid probate or protect property from creditors.

And, when circumstances change, and you want to sever the joint tenancy it becomes increasingly important to consult an attorney on how to properly do this to cut off the post death rights.

If you are considering joint ownership or need advice on how to structure your property ownership to best meet your needs and goals, it is crucial to consult with experienced legal professionals. At Schorr Law, our dedicated team of attorneys specialize in California real estate and property law, offering personalized guidance to help you navigate these complex decisions. Contact us today to schedule a consultation and ensure that your property is protected for the future. Call us at (310) 954-1877 or fill out our contact form here.

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