Legal Question in Real Estate Law in California

Re: joint tenents or tenents in common

The main difference is that joint tenants have the so-called right of survivorship, which means that if X and Y are joint tenants, and X dies, X's interest disappears and Y instantly and automatically becomes the sole owner.

On the other hand, if X and Y are tenants in common, when X dies, his or her interest passes to the heirs by will, trust, or the rules of intestate succession. Y gets nothing automatically. Of course, Y might get some increased share of ownership by virtue of inheritance, but that result is not automatic.

Other differences: Joint tenancies are fragile. Either joint tenant can sever the joint tenancy and turn it into a tenancy in common by some relatively simple paperwork. The opposite is not true.

Joint tenancies are always equal. If there are two joint tenants, the share of each is 50%. If there are three, they share 1/3 - 1/3 - 1/3. On the other hand, tenants in common can hold unequal interests in the property.

Joint tenancies are created when, and only when, all joint tenants obtain equal title at the same time by the same instrument, and it is usually necessary that the instrument indicate the co-owners' intention to hold as joint tenants. If a deed is silent as to how the grantees will hold title, the presumption is that they are tenants in common.

This is probably not an exhaustive list, but I think it covers the main differences. Many lawyers are now discouraging clients from co-owning property as joint tenants where the purpose is to avoid probate, because, while it does avoid probate, it does not avoid several unfavorable tax consequences and there are better ways to avoid probate that also avoid the taxes.

Re: joint tenents or tenents in common

Both indicate an undivided interest in real property, but joint tenant provides that upon the death of one owner, the other automatically owns the rest. Nevertheless there are problems with both. I suggest you download my free special report, The 7 Most Common Mistakes . . ., which you can find at my website, www.IWant2CreateMyLegacy.com