Published September 14, 2012
United Methodist Foundation for the Tennessee and Memphis Conferences
“My brother Pete and I own a ranch together,” said Joe to his advisor. “Our mother deeded the four sections of her ranch to us with right of survivorship. As a single person, I think that I will plan to leave 50% of my share to Pete and the other half to my favorite charity. Of course, if Pete dies, he is married and probably wants to leave his share to his spouse and children.”
Do Pete and Joe need to review their estate plans? Yes! These two rancher brothers held title as joint tenants with right of survivorship. If the single brother (Joe) were to pass away, Pete would inherit his brother’s half of the ranch. Even though Joe stated that half of his share should go to his favorite charity, nothing will be given to charity.
On the other hand, if the married brother (Pete) were to pass away, under the joint tenancy with right of survivorship rules the ranch now belongs in its entirety to Joe. Pete’s spouse and children would have no benefit, with the exception of some states in which a forced spousal share might provide some relief.
Do you know how your property is owned? This can make a huge difference in your plan, just as it did for Pete and Joe. Property can be owned outright, as tenants in common, as joint tenants with right of survivorship, or in a trust.
Joe is a single person and also owns a home in a small community close to the ranch. He has complete title to the property in his name. The legal term for owning property outright is “fee simple” title. Because Joe owns the property outright in his name, he is obligated to personally pay the taxes, mortgage interest, and other costs of maintaining the property. However, he has complete use of the property and may transfer it during life or through his estate to any person or charity.
Tenants in Common
With property held as tenants in common, each person has an undivided interest in his or her portion. For example, Pete and Joe could change the title to the ranch to tenants in common. Each would still own 50% of the entire ranch. The taxes, the mortgage payments, or any other costs would be divided between the brothers. However, because the ranch is held as tenants in common, each person may make transfers of his interest in the property during life or through his estate. Joe could decide to leave 50% of his half to Pete and 50% to his favorite charity. Pete could leave 50% of the ranch to his spouse and children.
Joint Tenancy With Right of Survivorship
Tennessee abolished the survivorship aspect of joint tenancies by operation of law by statute in 1784. See T.C.A. § 66-1-107 (1993) (current version of the 1784 statute). However, parties can still create estates of survivorship where the instrument creating the estate, whether deed or will, evidences such an intention. When so created, the surviving tenant receives title to the property when the first passes away. For example, if Pete were to pass away while the property is held as joint tenants with right of survivorship, Joe then would own the entire ranch. Both Pete and Joe would pay their share of taxes and the mortgage during life, but the property is transferred to the surviving joint tenant by virtue of the language in the deed indicating that to be the intent of the grantor, not according to the will of the first to pass away. For anyone other than a surviving spouse, joint tenancy with right of survivorship may result in accidental disinheritance.
It is possible to transfer real estate and other assets into a trust. Each person deeds his or her portion into the trust. The trustee owns the entire property for the benefit of the income and remainder recipients. The trustee will manage the property, collect income, and distribute it according to the terms of the trust document. A trust is especially useful if you own property in different states.
Therefore, it is very important to understand how your property is owned. When you are creating your estate plan or are considering a transfer or gift during life, you need to be certain that you first understand the ownership. Then you will be able to make a legal transfer to the intended beneficiary.
Many estate lawsuits have occurred because individuals thought they had the right to transfer property by will, but there was a joint tenancy with right of survivorship that transferred the property to a surviving owner. If one person receives under the will and another by right of survivorship, litigation is quite likely. By understanding the way in which your property is titled, you can be certain that your intentions are carried out according to your plan.