Acquiring real estate with co-owners has important legal consequences that vary depending on how title to the real estate is stated in the deed. State law generally governs real estate titles, and in Arizona, like all other states, you have several options when taking title to real estate with one or more co-owners. One such option is taking title as joint tenants with a right of survivorship. Whether this is the best option for you or your co-owners depends on your relationship to each other and your reason for acquiring the real estate.
Title to Real Estate
Arizona law recognizes several types of joint ownership involving real estate, each with its own characteristics. For example, two or more person can take title to real estate as tenants in common with the percentage ownership interest of each person being separate and distinct -- that is, it can be in unequal shares.
Tenants in common do not have the right of survivorship. A married couple can take title as community property, which gives each spouse a 50-percent ownership interest in the property. Unless it is expressly stated in the deed, a community property deed does not include the right of survivorship. When title to real estate is taken as joint tenants, the ownership interests of each person on title is equal and includes the right of survivorship.
Right of Survivorship
When a joint tenant dies, the right of survivorship means that the remaining joint tenants acquire the deceased joint tenant's ownership interest in the real estate. For example, if there were two joint tenants, each with a 50-percent share of the real estate, the surviving joint tenant becomes the sole owner. If there were three joint tenants, each with a 33 1/3-percent share of the real estate, the two surviving joint tenants acquire an equal share of the deceased's interest and remain joint tenants with a 50-percent share each.
A significant aspect of this type of ownership transfer is that it does not require court involvement -- that is, no probate is necessary. The transfer is recorded by filing the appropriate legal document, commonly called an "Affidavit Evidencing Termination of Joint Tenancy," with the county recorder's office where the real estate is located.
Joint Tenancy Issues
Taking title to real estate as joint tenants with the right of survivorship is a convenient way to avoid probate -- except for the last remaining joint tenant. Probate is only avoided for a transfer between a deceased joint tenant and the surviving joint tenants. The heirs of the last surviving joint tenant must probate the property to change title from the last surviving joint tenant's name to their names.
For married couples, Arizona law requires a written statement of their intent to take title to real estate as joint tenants with the right of survivorship; otherwise the real estate is presumed held as community property
How Should We Hold Title?
Determining how to hold title to real estate with one or more persons requires taking into consideration each person’s current financial and personal situation, as well as future goals. For example, if the real estate was purchased for investment purposes and the relationship among the co-owners is primarily as co-investors, titling the property as joint tenancy with the right of survivorship prevents all but the last surviving investor from passing their interest in the property to their heirs by will or trust.
Married couples who want their property passed to their children should avoid titling real estate as joint tenancy with the right of survivorship because the surviving spouse can unilaterally decide who receives the property when he or she dies. Before deciding on title when purchasing real estate with others, each person should consult with a lawyer to find out what form of title best suit their needs.
- Goodshoot/Goodshoot/Getty Images