If the terms of a joint tenancy contradict the terms of a will, the joint tenancy terms typically will take precedence. This is because the right of survivorship that’s implied with joint tenancy ensures that a joint tenant’s share of a property will transfer automatically to the joint tenants who survived them upon their death.
Many people choose to hold property as a joint tenant, since this particular way of holding title enables the property to bypass the probate process, which can be long, drawn-out and expensive. They may also hold property in joint tenancy to preclude a will from “overriding” the joint tenancy.
Suppose a will calls for a property the decedent held as a joint tenant with their spouse to be distributed to the decedent’s sibling. Provided the spouse is alive, the right of survivorship inherent in any joint tenancy would generally override any entitlement to the property the decedent’s sibling may have had if the property had been an estate asset.
For this reason, when a joint tenancy and will are at odds, the joint tenancy will almost always prevail. However, exceptions do exist that could make it possible for a will to override a joint tenancy. We’ll discuss what these exceptions are in this article.
Key Terms Related to Joint Tenancy and Wills
To grasp why a joint tenancy is so difficult for a will — or for that matter, any instrument or individual — to override, it’s crucial you understand not only the implications of a joint tenancy, but also how a joint tenancy works.
How Does a Joint Tenancy Work?
In simple terms, joint tenancy means that two or more people co-own a property. It provides each co-owner with an undivided interest in the property, regardless of how much they contributed to it.
The critical difference between owning property in joint tenancy and owning property as tenants in common is that joint tenancy title comes with a right of survivorship, which means that the deceased tenant’s ownership interest in a property automatically transfers to the surviving joint tenant(s) via the right of survivorship. In essence, once a joint tenant dies, the surviving joint tenant(s) become the full owner(s) of the property.
Suppose a couple owns a home as joint tenants. When one of them dies, the other will straight away inherit their partner’s 50% ownership interest. This automatic transfer generally will occur without probate, court approval or paperwork (save for the documents used to update title).
Because joint tenants have equal control over a property, they can do with it what they please while they are alive, including renting it out, residing in it or even selling their share. Joint tenants, however, should be careful when selling their share, as it could have the unintended effect of severing the entire joint tenancy.
When a joint tenancy is severed, it usually means the property will be held as tenants in common from that point forward. Tenancy in common entitles each tenant to an undivided interest in the percentage of the property they own. Unlike a joint tenancy, a tenancy in common does not come with a right of survivorship. Each tenant has the right to give away their share of the property in whatever way they choose through their estate plan when they die.
What Is a Right of Survivorship?
Surviving joint tenants are entitled to automatic and full ownership of a deceased joint tenant’s share of a property through the right of survivorship.
The right of survivorship is what sets joint tenancy apart from, say, tenancy in common, which neither allows for the automatic transfer of a tenant’s share of a property, nor avoids probate.
How Does a Will Work After Death?
A last will and testament is a document that’s often used in estate planning to leave assets to loved ones. Wills govern the assets in a decedent’s estate. In other words, they govern non-trust assets and assets without beneficiary designations.
After a will creator (called the testator) dies, the executor of their estate generally will lodge their will with the court. This will launch the probate process. Although probate could last months or even years, estate assets generally can’t be distributed until the process is complete. This is in stark contrast to assets held in joint tenancy, which transfer fully and automatically to the surviving joint tenant(s) after a joint tenant dies.
Does Right of Survivorship Override a Will?
A right of survivorship does typically override a will when it comes to property held in joint tenancy. This is because the right of survivorship makes the transfer of a property to the surviving tenant(s) automatic. In other words, it occurs immediately upon a joint owner’s death without intervention from anyone.
That said, there are rare instances where a will could override the right of survivorship. For example, if there is evidence to suggest the deceased joint owner had created the joint tenancy while under duress, the court could be forced to terminate the joint tenancy and possibly even disinherit the tenants who were responsible for the financial abuse.
When Can a Will Override Joint Tenancy?
For the most part, a will cannot override a joint tenancy. However, there are exceptions to this rule, which we discuss below.
Joint Tenancy Is Severed
If a joint tenancy had been intentionally or unintentionally severed, the decedent’s share of the property could pass to their estate, where it may be distributed according to the terms of their will (provided a will exists and is valid). This could have the effect of the will “overriding” the joint tenancy.
A joint tenancy can be severed with express consent from all the joint owners, by a joint tenant transferring or selling their share of the property, or as a result of a court order.
Once a joint tenancy is severed, the right of survivorship will no longer apply, meaning the property will be held in tenancy in common, where each tenant can do with their proportional interest in a property what they please — though, with tenancy in common, the deceased tenant’s interest will need to pass through probate before it can be distributed to beneficiaries unless it is held in a trust.
Joint Tenancy Is Invalid
A joint tenancy may be invalid if it was created by someone who lacked the mental capacity required to execute such a contract. It also may be invalid if it was created as a result of undue influence, fraud or another form of misconduct.
Say a property owner mistakenly created a joint tenancy because their children deceived them into believing they were signing another type of document. If it can be proven the joint tenancy was unlawfully obtained, it could be invalidated, leading to the deceased tenant’s share of the property passing to their estate, where it likely will be distributed according to the terms of their will (supposing a valid will exists). This may amount to the will “overriding” the joint tenancy.
Remember, if elder financial abuse can be proven in such a situation, it could result in the culprits’ disinheritance — even if the culprits were the surviving joint tenants of the property.
FAQs: Joint Tenancy vs. Wills and Trusts
We hope you’ve gained the clarity you need to effectively navigate any issues that arise from a joint tenancy conflicting with a decedent’s will. If you haven’t, consult our frequently asked questions below to see if you can find the answers you’re searching for there.
Remember, the legal guidance we provide in these articles is general. For guidance tailored to your specific needs, contact our firm.
Does a will override a joint tenancy deed?
No, a will usually doesn’t override a joint tenancy deed, since a will is subject to probate, but a joint tenancy deed is not. When assets are held in joint tenancy, the surviving joint tenants automatically receive the deceased joint tenant’s entire share of the property upon the tenant’s death.
Because a joint tenancy deed is nothing more than the legal document that establishes the joint tenancy, a will generally does not override it. Asking whether a will overrides a joint tenancy deed is no different from asking whether a will overrides a joint tenancy, which is the very topic this article discusses.
Can a joint tenancy be willed?
No, a joint tenancy cannot be willed because there is no way for a property held in joint tenancy to belong to a decedent’s estate unless the joint tenancy had previously been terminated. Remember, only estate assets can be willed.
That said, if only one joint tenant remains, they own the entirety of the property at issue and can do with it what they please (including leaving it to the beneficiaries of their choosing in their will), but by this stage, the property is no longer being held in joint tenancy. Rather, the former joint tenant has sole ownership of the property.
Can a will sever a joint tenancy?
No, a will cannot sever a joint tenancy, since the property at issue is governed by a joint tenancy deed, not a will, which only governs estate assets. This is not to say a joint tenant can’t sever a joint tenancy before their death — they generally can do this at any time — but severing the joint tenancy would make tenancy in common take effect.
Does joint tenancy override a trust?
A trust can terminate a joint tenancy if the trust purports to terminate the joint tenancy and all the joint tenants sign the trust.
However, if these conditions aren’t met, a joint tenancy generally does override a trust for the same reasons it overrides a will. In other words, it provides for full ownership of a property to transfer automatically to the surviving joint tenant(s) after a joint tenant’s death, regardless of whether the deceased tenant’s trust calls for it.
As a refresher, the only legal document governing the joint tenancy is the joint tenancy deed. Only if this deed is invalidated might a joint tenancy be unable to override a trust.
Can a joint tenant sell their interest in a property?
Yes, a joint tenant can sell their interest in a property, but by doing so, they would be severing the joint tenancy for their share of the property. To put it another way, the buyer to whom they sell the property would hold the property as a tenant in common, rather than as a joint tenant, with the remaining tenants.
Still have questions about joint tenancy?
Understanding how title could impact your inheritance is crucial when enforcing your inheritance rights after a loved one’s death. Yet, few grasp the implications different forms of ownership can have, especially in probate, where title disputes are common.
As a firm that exclusively practices in probate litigation, we have the expertise and experience to navigate any complexities that may arise related to title and fight for the inheritance that’s rightfully yours. Let us take some of the burden off your shoulders and advocate on your behalf. Call us today to get the process started.
