The deal on dual ownership of real property

May 31, 2022 | By: Neil Lyons

I often receive calls from clients who own real property jointly with another individual who has passed away. Typically, the potential client is curious about how to title the property solely in their name.

In some cases, changing the ownership interests to the sole survivor is as simple as filing the deceased owner’s death certificate. In other circumstances, changing the ownership interest may require a judicial proceeding such asprobate administration. The answer to the question often depends on how the ownership interests were conveyed on the deed of the real property.

There are three most common forms of dual ownership. They are tenancy in common, joint tenancy with right of survivorship, and tenancy by the entireties.

A tenancy in common

A tenancy in common, or some other form of joint venture of a disjunctive nature, basically states that in an arrangement of multiple owners, the death of one owner will cause that deceased owner’s share to pass to his or her designated beneficiaries or heirs.

In each form of ownership, the form is called a “tenancy.”

Each of its participants is referred to as a “tenant.”

There is no right conferred on a surviving tenant-in-common by the death of the other tenant or tenants.

Thus, the deceased tenant’s ownership interest will likely require a probate or summary administration to transfer the ownership interest.

Joint tenancy with right of survivorship

The second form of dual ownership is a joint tenancy with right of survivorship. This means that in the event of the death of one tenant, the asset passes to the surviving tenant or tenants.

This applies to persons who are married or who are not married. For example, two siblings owning property as tenants with right of survivorship have what is, in essence, a per capita arrangement between the two of them in which the asset simply passes to the surviving sibling.

As such, it is highly unlikely that a surviving joint tenant will need to pursue a probate administration to transfer the deceased joint tenant’s interest.

Tenancy by the entireties

The third form of ownership is a tenancy by the entireties.

A tenancy by the entireties is joint ownership with right of survivorship but pertains only to married persons, including same-sex spouses.

In the event of the death of one spouse, the asset passes automatically to the other spouse.