Joint Tenancy with Rights of Survivorship in Orlando, Florida: What it Means

How Does Right of Survivorship Work With Joint Owners?

Rights of survivorship must be taken into account when planning any estate or selling a real estate property. Even if you write your will or trust to work a certain way, this right can still affect your estate plans. When selling or buying real estate, rights of survivorship can mean that the seller doesn’t have the right to sell a property, leaving a buyer high and dry. To avoid this, speak to an attorney and make sure your will and estate are followed the way you want.

Consider Legal Counsel, P.A.’s Real Estate and Estate Planning Attorneys

Legal Counsel, P.A. is an estate planning and real estate law firm in Orlando, Florida. We can help you handle both real estate ownership and passing it down to your beneficiaries. Our attorneys can help you every step of the way through your real estate closing and purchase.

Considering Rights of Survivorship and Joint Ownership in Real Estate Law

When closing on real estate, there are many factors you need to consider, including how you plan to hold the title. What does this mean and why is it important?

First, we need to take a moment to understand what a title is. The title of a property is the document that shows who the legal owner or owners of the property are. There are several ways a title can be held, including joint tenancy, tenancy in common, tenants by entirety, sole ownership, and community property. Let’s look at each when the rights of survivorship need to be considered.

Joint Tenancy

Joint tenancy with rights of survivorship is one way for two people to hold a title. With this arrangement, both parties have equal rights to the property, and if one party passes away, the other party named on the title will have full ownership of the property.

The benefit of this arrangement is that if one partner passes away, the other partner can avoid probate without the need for a will. However, there are risks with joint tenancy:

• If the parties listed as joint tenants are not married, and there is a disagreement about selling the property, the joint tenants may need to take the case to court.
• If one party contributes more financially to the property after the closing, and then both parties choose to sell, accounting for each party’s contribution can be complex. This can lead to uneven contributions to the upkeep of a property. Both parties may want to have additional contracts in place to make their wishes clear.
• If one party puts a large down payment on the property and then chooses to hold title in a joint tenancy at closing, the down payment may not be considered a contribution to the property when accounting for both parties’ contributions to the property. The courts may instead count such a down payment as a gift.
  • For example, in Jorge Alfonso Fernandez vs. Romena Marrero, the court found that Fernandez could not recoup his down payment when dividing the property with Marrero, even though he paid the full down payment before closing. Why? The court saw his choice to pay the down payment as a gift to Marrero. So, any decisions regarding contributions for a down payment must be worked out before a joint tenancy is created.
• Another issue can arise if one party listed as a joint tenant gets into financial trouble, because creditors may be able to come after the property on which both people are named. Both parties share risk with a joint tenancy.

Tenancy in Common

The right of survivorship works with tenancy in common similarly to how it does with joint tenancy. The difference is that heirs can be listed as the inheritors of a share of the title rather than ownership going entirely to the other joint tenant.

This can help the title avoid probate and ensure that children or other heirs can inherit property according to your wishes.

Tenants by Entirety

Tenants by entirety is a way for a married couple to hold title. This legally joins the couple in ownership of the property.

Community Property

Community property refers to any property a couple acquires during their marriage. Even if a couple doesn’t make arrangements for joint tenancy or tenants by the entirety, absent a prenuptial agreement, a real estate purchase made after marriage is considered community property shared by both parties.

Sole Ownership

Sole ownership is when only one person owns the property. If you are married and want sole ownership of a property, your spouse may need to explicitly state in writing that he or she agrees to have no ownership of the property.

Considering the Right of Survivorship and Joint Ownership in Estate Planning Law

Joint Tenancy with Rights of Survivorship can present conflicts in estate planning law due to several factors:

• Automatic Transfer: Upon the death of one joint tenant, their interest in the property automatically transfers to the surviving joint tenant(s). This can bypass the decedent’s will, potentially leading to disputes among heirs, especially in blended families or when contributions to the property are unequal.
• Family Conflicts: In situations where family dynamics are complex, such as with stepchildren or multiple marriages, the Joint Tenancy with Rights of Ownership can lead to conflicts among surviving family members who may feel entitled to a share of the property.
• Lack of Control: The automatic nature of the transfer can limit the control the deceased had over their estate, potentially conflicting with their broader estate planning goals.
• Tax Implications: While this situation can still avoid probate, it may have other tax implications that need careful consideration in the context of the overall estate plan.

These factors highlight the importance of carefully considering the use of Joint Tenancy with Rights of Ownership in estate planning to ensure it aligns with the individual’s intentions and family dynamics.

Contact the Real Estate and Estate Planning Attorneys at Legal Counsel P.A. For Help

Each of these ways of holding a title can have its own benefits and drawbacks. Many of the benefits of joint tenancy involve survivorship benefits that permit a surviving spouse or partner to claim full ownership of the property if another partner passes away. Other arrangements make it easier for heirs to claim ownership of a property without the need to go through the costly probate process.

At the end of the day, how you choose to hold a title is a personal decision that should be made in consultation with your real estate and/or estate planning lawyer, who can help you understand the drawbacks and benefits of your particular situation. Every case is unique and the choice you make about how to hold title can have major implications for your rights. 

Legal Counsel, P.A. is a real estate law and estate planning firm in Orlando, Florida, that can help you understand the options available to you and the potential benefits and drawbacks of each. Have questions? We have answers. Contact Legal Counsel, P.A. online or at 407-982-4321 today.