JOINT ESTATE
Property owned by two or more people at the same
time, under the same title, with the same interest,
and with the same right of possession.
Although joint estate is sometimes used
interchangeably with joint tenancy, the two
terms are not synonymous. Joint estate denotes a
broad category of ownership that includes JOINT
TENANCY, TENANCY IN COMMON, and TENANCY
BY THE ENTIRETY. A more apt synonym for joint
estate is concurrent estate, which depicts the
simultaneous ownership of property by more
than one person.
Joint Tenancy
Joint tenants acquire the same interest in the
same property through the same conveyance,
commencing at the same time, and each holds
the property under the same individual posses-
sion. Each owner possesses the entire property
by the appropriate designated fraction as well as
by the whole, and has the right to enjoy both the
fraction and the whole, but shares that right
with all other joint tenants. A joint tenancy is
created through a simple and straightforward
process—for example, through a deed or will.
The principal difference between joint ten-
ancy and other forms of co-ownership is that
upon the death of a joint tenant, the surviving
tenants have the right to the sole ownership of
the property. This right, known as the RIGHT OF
SURVIVORSHIP, exists without regard to the rela-
tionship between the tenants. In other words,
two people who are not related in any way can
be joint tenants, and either will, upon the death
of the other, possess all of the deceased’s rights
of ownership in that parcel of property. The
property does not become part of the decedent’s
estate, and the disposition of the property can-
not be changed by will. When one joint tenant
dies, the remaining tenants take an increased
share of the property, and this process continues
until the last survivor owns the entire parcel.
That survivor then ceases to be a joint tenant
and may do with the property what she wishes,
as its sole owner.
Joint tenancy has enjoyed great popularity
because it provides a simple mechanism for
holding title to property without that title hav-
ing to pass through probate. The cumbersome
nature of certain probate proceedings and the
cost and time that they entail provide ample
motivation for many people to seek a joint ten-
ancy arrangement. Joint tenancy is often used by
a HUSBAND AND WIFE who wish, for example, to
have their homestead remain under the sole
ownership of the surviving spouse when one
dies. The property becomes part of a probated
estate only when the second spouse dies.
Four unities are necessary for the establish-
ment of a joint tenancy: time, title, interest, and
possession. This means that the interests of the
joint owners must come into existence at the
same time and by the same conveying docu-
ment, the interests of all tenants must be identi-
cal, and each tenant must have an equal right to
enjoy the property. Formerly, if any of these uni-
ties did not exist or ceased to exist, a joint ten-
ancy was disallowed or extinguished, and a
tenancy in common was created. Today, courts
tend not to examine the technical existence of
the four unities in considering a joint tenancy
case.Where it was the clear intention of the par-
ties to create a joint tenancy and where the
requirements have generally been met, most
courts will find that a joint tenancy exists.
It is still a well-accepted principle of the uni-
ties that if a joint tenant conveys his interest in a
property to a third party, the third party
becomes a tenant in common, while the remain-
ing tenant continues as a joint tenant but no
longer enjoys the right of survivorship. The right
of survivorship is lost whether or not the con-
veyor seeks its loss. Thus, since any joint tenant
has the inalienable right to sever the joint ten-
ancy by conveying her property to another
party, the existence of a joint tenancy is not a
complete protection of the right of survivorship.
Other problems may arise owing to the joint
tenants’ inability to control the distribution of
the property through a will. In addition, a fed-
eral gift tax may be imposed if the joint tenancy
was created primarily from the funds of only
one joint tenant.
Many states have tended to favor tenancies in
common over joint tenancies because a joint ten-
ant may not clearly understand that the property
goes to the surviving tenants. Courts differ on the
language required to create a joint tenancy.
Where a desire to create a joint tenancy is not
clearly expressed, courts will often find in favor of
a tenancy in common rather than a joint tenancy.
Tenancy in Common
Tenancy in common provides ownership of
an undivided interest of the whole but not of the
whole itself. It bestows no right of survivorship,
and the interest of the tenant in common is
freely alienable and will pass to the heirs of the
tenant upon the tenant’s death. When a sole
owner dies without having specified the disposi-
tion of the property, the heirs will inherit as ten-
ants in common.
Tenancy by the Entirety
Tenancy by the entirety is similar to joint
tenancy in providing the right of survivorship
and requiring the four unities. But it is a more
restricted type of joint estate that may exist only
between a husband and a wife. Each spouse
owns the undivided whole of the property so
that upon the death of one spouse, the surviving
spouse is entitled to the decedent’s full share.
Neither spouse can voluntarily dispose of his
interest in the property, and the tenancy can be
created only by will or by deed.
If a conveyance specified a tenancy by the
