Joint tenancy is a standard structure for two or more parties to own property together. With a joint tenancy, each tenant has the same rights and responsibilities as the other owners and has an equal stake in the assets. In addition, with a joint tenancy, each co-owner has the right of survivorship. That means if one joint tenant dies, their share does not go to a designated heir. Instead, it is distributed equally to the remaining owners.
With joint tenancy, all co-owners come together simultaneously without the ability to add or subtract additional participants.
The right of survivorship is key.
Since a trust does not die, the trust can’t be a party to a joint tenancy. When the grantor of a trust dies, the property within that trust is distributed to the beneficiary or beneficiaries. Since the property held in joint tenancy is passed to the other joint tenant(s), there is a conflict. Available legal opinions on this question maintain that if a joint tenant owner transfers their share of a property to a trust, that act severs the joint tenancy arrangement.
Is a trust or joint tenancy better for owners?
In either type of structure, the property held can avoid probate, which is a goal for many investors. With joint tenancy, the deceased's share transfers directly to the joint tenant (or tenants) without needing a probate review. Often, spouses hold property in joint tenancy so that the surviving spouse can easily transition to sole ownership of the assets.
Trust assets typically bypass probate to be distributed to their beneficiaries. However, the grantor of a trust can add stipulations to the ownership or use of property that can’t be obtained using a joint tenancy distribution. So, if you own property with someone and want that person to inherit but not have complete control over the property, a trust may be a more workable option than a joint tenancy. For example, suppose the beneficiary is a young adult. In that case, the transfer of total value can be done over time or contingent upon completing a milestone event like a college graduation.
If, instead, you hold the property with that person as a joint tenant, they will immediately gain full access to the property when you die. Furthermore, a joint tenancy is very difficult to sever without the consent of the joint tenant, while a revocable trust can be withdrawn or changed as long as the grantor remains living and competent.
Consider tenancy in common.
Another standard structure for two or more entities to share property ownership is using a tenancy in common. There are some critical differences between this ownership structure and joint tenancy. First, the ownership shares can be equal or unequal. Second, owners don’t have to enter and leave the arrangement at the same time—each owner has the right to sell or transfer their portion at will. Third, there is no right of survivorship. If one tenant in common passes away, their individual share goes to their designated heir rather than being divided among the remaining tenants.
Due to the different structure and rules for tenancy in common, it is possible for the tenants in this case to be trusts rather than individuals.
This material is for general information and educational purposes only. Information is based on data gathered from what we believe are reliable sources. It is not guaranteed as to accuracy, does not purport to be complete and is not intended to be used as a primary basis for investment decisions. It should also not be construed as advice meeting the particular investment needs of any investor.
Realized does not provide tax or legal advice. This material is not a substitute for seeking the advice of a qualified professional for your individual situation.
