Discuss the concept of joint ownership and its subcatagories: joint tenancy, tenancy in common, tenancy by the entirety, and community property. How do they effect the distribution of the decedent's property?

Question

What will be an ideal response?

Answer 1

Joint ownership refers to multiple parties owning an interest in one property whether of real property or personal property. The interests may be equal or disparate depending upon the form of joint ownership.
? Joint tenancy, if it is right of survivorship, is a non-probate asset so it is transferred as a matter of law and is not subject to the probate of a decedent’s estate. In some circumstances, property therefore transfers to the other joint owner and the decedent’s will beneficiaries or other heirs may not be happy about the disposition (for example: when the parent owns a bank account with one child and not the others). Nonetheless, they can do nothing about it unless they can prove some type of fraud in the form of transfer while the decedent was incapable etc or that the joint ownership was merely for the convenience of one of the parties. Joint tenants own the same interest in property.
? Tenancy in common means that all the title holders own their share jointly but not with survivorship rights and the decedent’s portion transfers either by intestacy to heirs or by will to beneficiaries. Tenants in common may not own the same interest and may acquire their interests at different times.
? In a tenancy by the entirety, the property passes automatically to the decedent’s spouse as this is form of title is specific to husbands and wives. In most instances, this is the desirable outcome but in second families, and especially when the home is the only or largest asset, children from prior marriages/relationships may be upset. There is no recourse however. This form of property ownership is not subject to the claims of creditors.
? Community property laws vary from state to state (in those that have community property), however, the one thing to remember is that a community asset is owned ½ by the husband and ½ by the wife. Therefore the decedent’s spouse does not automatically own the decedent’s portion of the property upon the decedent’s death, as with tenancy by the entirety. With marriages in which all the children are from that marriage this is often not an issue. However with second or third marriages, it is vitally important in community property states to insure that each spouse make provision for the other spouse so that a surviving spouse does not find him or herself owing half of his/her house with the decedent’s children from prior marriages/relationships.