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WA-Probate > Probate Avoidance > Joint Tenancies

 

 

B.  Joint Tenancies (with Right of Survivorship --- "JTWROS")

  1. What Is a Joint Tenancy?

  2. Between Two or More Other Persons Other Than a Married Couple

  3. Special Case #1: Joint Tenancy Bank Accounts

  4. Special Case #2: Joint Tenancy Bank Account Between Nonspouses

  5. Between a Married Couple

  6. Advantages of Joint Tenancies

  7. Disadvantages of Joint Tenancies

  8. Summary

  9. Administration of Joint Tenancy Property at Death

 

1.  What Is a Joint Tenancy?    

 

Caution:  By a "Joint Tenancy," we mean a "true" joint tenancy, property not only owned by more than one person (a "joint tenant") but one in which each joint tenant has:

Specifically, this discussion does not concern property held by:

 

2.  Between Two or More Other Persons Other Than a Married Couple    

 

If two or more persons hold property "jointly" or "in common" without saying more, they will be considered to hold the property as a tenancy in common.  RCW 64.28.020(1)  What is a Tenancy in Common?  Property held as a tenancy in common, however, is subject to probate.  The usual way for multiple owners of property to avoid that impediment is to hold the property not just "jointly" but as a "joint tenancy."  To create a joint tenancy, however, title to the property must be taken:

As a general rule, holding property in joint tenancy form is probably the simplest and least expensive way to ensure that it will pass outside of probate so long as any joint tenant survives, which is why it is known as "poor person's estate planning."

 

Transferring property into joint tenancy form, however, does not shield it from one's creditors, either:

 

3.  Special Case #1: Joint Tenancy Bank Accounts    

 

Any property in Washington held in joint tenancy form generally and inherently includes a right of survivorship.  RCW 64.28.010

 

Exception:  For a joint tenancy account created on or after July 1, 1982, and held at a financial institution (ie, a bank, trust company, mutual savings bank, savings and loan association, or credit union; RCW 30.22.040(12)) to include a right of survivorship, the account must expressly state that it is held as a "Joint Tenancy with Right of Survivorship."  RCW 30.22.050(3)  An account held at a financial institution merely as a "joint account" or "joint tenancy account" is treated as an account held as a tenancy-in-common among its holders.  RCW 30.22.040(7)

 

In dealing with bank accounts, it is helpful to differentiate between the joint tenants:

During the life of a depositor:

Caution: Right of withdrawal is not the same as right of ownership.  While the depositor is alive:

Upon the death of the (unmarried) depositor of a two-party, one-depositor, one-signatory, joint tenancy bank account:

Bottom-line: A JTWROS bank account is like a POD bank account (see next page) but with the added feature that a signatory of a JTWROS bank account (unlike a designated beneficiary of a POD account) also has the right to withdraw (but not to own without the depositor's consent) all of the funds during the depositor's life.

 

 

4.  Special Case #2: Joint Tenancy Bank Account Between Nonspouses:    

The joint tenancy is void with respect to the married joint tenant.  At his/her death, his/her share of the joint tenancy is subject to probate in his/her estate and to disposition by his/her Will.  Munson v. Haye, 29 Wn.2d 733 (1948); Chesnin v. Fischer, 43 Wn. App. 360 (1972); DeNoskoff v. Scott, 36 Wn. App. 424 (1984).

 

Bottom-line:  Joint tenancy cannot be used to deprive a spouse of his/her community interest in property without that spouse's knowledge and consent.

 

The following discussion about joint tenancies will assume that the property in question is not a bank account.

 

 

5.  Between a Married Couple    

 

All property held in common (ie, whether in joint tenancy, as tenants in common, etc.) by a married couple is presumed to be community property.  RCW 64.28.020(2); RCW 64.28.040(1)  For a married couple to hold property in true joint tenancy, their intent must be shown by "clear, certain, and convincing evidence" in a writing signed by both.  Lambert v. Peoples Nat'l Bank of Washington, 89 Wn.2d 646 (1978).  A married couple's taking title merely "as joint tenants" may be insufficient to show the required intent.  Estate of McGee, 55 Wn. App. 692 (1989) [Real estate agent inserted "as joint tenants" in Deed for convenience].  If, however, such intent can be shown and the joint tenancy proven, then at the death of the first spouse to die, the property will pass to the surviving spouse just like it would in the case of other joint tenants --- without:

Bottom-line:  If a married couple holds property in true joint tenancy, then it will pass outside of probate to the surviving spouse and not be subject to probate as it otherwise would have been (unless it was instead subject to a Community Property Agreement).

 

 

6.  Advantages of Joint Tenancies    

 

7.  Disadvantages of Joint Tenancies    

 

Practically speaking:

Property Disadvantages:

Tax Disadvantages:

8.  Summary    

 

Transferring property into joint tenancy form is quick, inexpensive, and simple estate planning --- which can often lead to disadvantageous and unintended results.  In most cases, the desired results of placing property into joint tenancy form --- probate avoidance + simplicity --- can easily be obtained through the use of other methods, often at little increased cost and complication.

 

 

9.  Administration of Joint Tenancy Property at Death    

 

 

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