Joint Tenancies (with Right of Survivorship — “JTWROS”)
- What Is a Joint Tenancy?
- Between Two or More Other Persons Other Than a Married Couple
- Special Case #1: Joint Tenancy Bank Accounts
- Special Case #2: Joint Tenancy Bank Account Between Nonspouses
- Between a Married Couple
- Advantages of Joint Tenancies
- Disadvantages of Joint Tenancies
- Administration of Joint Tenancy Property at Death
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:
- An equal, undivided, and fractional interest in the property;
- The ability to terminate the joint tenancy by:
- Partition (a lawsuit to divide the property among its joint tenants),
- Conveyance (transfer of one’s interest, eg, by gift or sale, during life or at death), or
- Encumbrance (use of one’s equity in the interest as security for a loan); and
- The right of survivorship, meaning that upon the death of any joint tenant:
- His/her interest in the joint tenancy is extinguished, and
- The relative shares of the remaining joint tenants increase (“by operation of law”) without the necessity of any probate proceeding until the last surviving joint tenant owns all the property (“last survivor takes all”). RCW 64.28.010
Specifically, this discussion does not concern property held by:
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:
- In a writing, and
- The writing must specifically declare the interest to be a joint tenancy. RCW 64.28.010
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:
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:
- While a “depositor,” technically, is anyone whose name is on the account, I shall consider a “depositor” to be only someone whose funds are deposited into the account, and
- A “signatory” to be anyone whose name is on the account but who has not contributed funds to it.
During the life of a depositor:
- The depositor is the one who is considered to own the funds in the account. RCW 30.22.040(11)
- If there is more than one depositor, they are considered to own the funds in the account in the same proportion as each has deposited net funds into the account. RCW 30.22.090(2)
- A signatory has no ownership interest in the account. Estate of Lennon, 108 Wn. App. 167 (2001).
- Any joint tenant has the right to withdraw all of the funds, and the bank may pay all the funds to any joint tenant regardless of whether any other joint tenant is alive, legally disabled, or deceased. RCW 30.22.140
Caution: Right of withdrawal is not the same as right of ownership. While the depositor is alive:
- “Funds on deposit in a joint account belong to each depositor in proportion to their ownership of the funds. … Although [the signatory has] a right as joint tenant to withdraw the funds, they [do] not belong to [him/her].” Estate of Tosh, 83 Wn. App. 158, 166 (1996). A joint tenancy signature card does not make a signatory the owner of any of the account’s funds — it only evidences the parties’ intent of right of survivorship. State v. Mora, 110 Wn. App. 850 (2002)
- If the signatory withdraws funds with the depositor’s consent, the withdrawal is a gift.
- If the signatory withdraws funds without the depositor’s consent, the withdrawal is theft. State v. Mora, cited above [Signatory convicted of theft of joint tenancy account funds].
Upon the death of the (unmarried) depositor of a two-party, one-depositor, one-signatory, joint tenancy bank account:
- If the account does NOT expressly provide for right of survivorship, its funds belong to the depositor’s estate, just as they would with a tenancy-in-common or sole account — unless the depositor has also designated another as a POD (payable-on-death) beneficiary. RCW 30.22.100(2)
- If the account DOES expressly provide for right of survivorship, its funds belong to the signatory — unless there is clear and convincing evidence of the depositor’s contrary intent when the account was created. RCW 30.22.100(3)
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.
Special Case #2: Joint Tenancy Bank Account Between Nonspouses:
- Funded with the community property of a joint tenant (ie, at least one of the joint tenants is married and deposits community assets into the account), and
- Deposits the funds without the knowledge of that married joint tenant’s spouse.
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.
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:
- A Will,
- A probate proceeding, or
- A Community Property Agreement. RCW 64.28.040(1)
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).
Advantages of Joint Tenancies
- Remarkably Easy & Inexpensive to Create.
- Probate Avoidance: Joint tenancies avoid probate (unlike tenancies in common).
- One-Party Revocation: Joint tenancies may be revoked at any time by any joint tenant (unlike property subject to a Community Property Agreement).
Disadvantages of Joint Tenancies
- Married Couples. Little reason exists for a married couple not to put property into joint tenancy form between themselves, because by using the joint tenancy form, either spouse may revoke the transfer — while by using a Community Property Agreement, the revocation of the transfer requires both spouses’ agreement.
- Surviving Spouse/Parent. The majority of persons putting property into joint tenancy form for estate planning persons are surviving spouses who “want to add my children’s name to the title” so that upon the parent’s death, “the property will pass to my children without probate.”
- In intent, the surviving spouse/parent wants to make a gift that takes effect at his/her death (like creating a POD bank account or a TOD securities account — see next page).
- In fact, by adding the children’s names to the title in joint tenancy, the surviving spouse/parent is making a present gift, one that takes effect immediately — the children become co-owners of the property with the surviving spouse/parent at the time of transfer, not at the surviving spouse’s later death. This can be disadvantageous for both property and tax reasons.
- Reduces Own Estate: As is true for the making of any lifetime gift, making a gift by putting property into joint tenancy form with one or more other persons will necessarily deplete the estate of the transferor. The parent’s financial situation may change for the worse in the future, and the parent may be unable to reacquire the property for his/her own use if and when he/she needs it.
- > Possible Transfer by the Transferee: Being an immediate co-owner of the property, a child now has the right to sell or mortgage his/her interest in the property, which the parent cannot prevent. (The parent may sever the joint tenancy but that won’t result in the return of the gift to the parent; it will only prevent the parent’s share of the joint tenancy from passing, at the parent’s death, to the child’s transferee.) Thus, the parent is effectively making the gift on the presumption that each child will not voluntarily transfer his/her interest, at least not until the parent’s death.
- Possible Involuntary Loss (Judgment Creditors): Property held in joint tenancy form can be attached in favor of its owner’s creditors. A child could lose a lawsuit in contract (eg, a business transaction) or tort (eg, a wrongful death action as a result of his/her being the driver of a car in a fatal traffic accident), and the prevailing party could attach the child’s joint tenancy interest in satisfaction of that party’s judgment against the child. Thus, the parent is effectively making the gift on the presumption that each child will not involuntarily transfer his/her interest (eg, to a judgment creditor).
- Possible Later Transfers Inconsistent with Transferor’s & Transferees’ Estate Plans (Unintended Disinheritance): In the case of multiple children, each child, particularly if he/she is married and especially if he/she has children of his/her own, will likely want his/her joint tenancy interest to pass not to his/her siblings but, instead, to his/her spouse or children.
- If a child predeceases the parent and is survived by a sibling and a spouse or children of his/her own (ie, grandchildren of the parent/transferor), neither the spouse nor children will take in favor of the deceased child’s siblings. This result is unavoidable during the parent’s life.
- If a child survives the parent, then dies and is survived by a sibling and a spouse or children of his/her own (ie, grandchildren of the parent/transferor), again, only the sibling will take. This result is avoidable following the parent’s death: the child will need to actively sever the joint tenancy promptly following the parent’s death; otherwise, the child’s spouse or children will be disinherited if the child does not survive all his/her siblings.
- Possible Taxable Gift & Possible Gift Tax Payable: The creation of a joint tenancy is a gift for gift tax purposes. If the value of the interest transferred exceeds the gift tax annual exclusion amount (in 2003, $11,000), the transfer will be a taxable gift, and if it exceeds the gift tax applicable exclusion amount (in 2003, $1 million), a gift tax will be due.
- Possible Unnecessary Increase to Recipient’s Taxable Estate or Estate Tax Payable: If any of the recipient joint tenants (here, the children) predecease the donor (here, the surviving spouse/parent), the value of that recipient’s joint tenancy interest will unnecessarily increase the value of his/her gross estate for estate tax purposes, unnecessarily increasing any estate tax due.
- Loss of Step-Up in Basis and Possible Increase in Income Tax Payable Upon Sale: At the time of the creation of the joint tenancy, each of the recipients will take a carry-over basis in their share of the property for income tax purposes. Assuming that the property appreciates from the time of the creation of the joint tenancy until the time of the donor’s death, the surviving joint tenants may lose the step-up in basis that they would otherwise have received had they received their interest as a result of the donor’s death. Consequently, upon any subsequent sale of their interest in the property, they may pay more income tax than had they received their interest at the donor’s death.
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.