How to Deed Property From Joint Tenants With the Right of Survivorship to Tenants in Common
People may choose to end joint tenancy survivorship rights in a parcel of real estate for estate planning purposes or due to domestic issues. When two people, such as a husband and wife, hold title to real estate as joint tenants with rights of survivorship, the property passes to the survivor upon the death of the other title holder. When held as tenants in common, however, each person's share of the property will instead pass to his or her heirs or estate upon death.
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Instructions
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Prepare a deed to convey the property to your spouse and yourself (or, if you are not married, the other joint tenant and yourself) without survivorship language. The language to be excluded from the new deed will appear as "... for and during their joint lives and upon the death of either of them, then to the survivor in fee simple ..." or some similar language referencing survivorship rights. This language usually appears in the initial paragraphs of the deed as well as in the habendum clause -- a paragraph in the deed which usually begins "To have and to hold..." and states how title is held. Tenancy-in-common deeds should not contain this survivorship language.
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Make sure the survivorship/joint tenancy language in the new tenants-in-common deed has been removed, such that the property will be conveyed with language such as "... their heirs and assigns in fee simple forever ...." Another method often used to break a joint tenancy is for one tenant to deed his interest in the property to another individual, his limited liability company or his trust. According to Vermont Attorneys Title Corporation, one of the elements of joint tenancy is "unity of title," which means that joint tenants must acquire the property in one transfer, such that when one party deeds his individual interest, unity and therefore survivorship no longer exists.
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Sign the deed in the presence of a notary public. A proper form acknowledgement for the state where the property is located will be required, or an attorney or title company may refuse to issue a title insurance policy free from defects without corrective documents. This could lead to problems with the termination of the joint tenancy.
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Record your newly prepared, properly executed deed in the land records for the county where the property is located. Unless the deed is recorded, the public will have no notice of the termination of survivorship provisions within the deed. Should the original be lost, there would be no proof of the change in ownership status.
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Tips & Warnings
Discuss the ramifications of changing ownership status in property with your estate planning attorney and/or accountant.
Seek the advice and/or services of a real estate attorney prior to changing ownership rights in property.
This article should not be considered a substitute for legal advice from a qualified attorney.
References
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