How to clear joint tenancy ownership Law Offices of Fred M. Duman & Associates 2807 Castro Valley Boulevard     Castro Valley, California 94546 Tel: (510) 537-3388 Fax: (510) 889-1114

Dear Mr. Duman:

My sister and I have had title to a home we inherited from our mother, as "Joint Tenants."  My sister recently died, and I am wondering what I must file to transfer title to the property into my name alone.

Please help.

A.K., Albany

For those of our readers who may be unfamiliar with this subject, a "joint tenancy" is a form of co-ownership by which multiple parties may hold property.

A "joint tenancy" can only exist, if it is expressly declared as such in the document that purports to create the joint tenancy.  With joint tenancies, the transferees must take equal shares from the same transferor at the same time.  When a joint tenant owner of  property dies, his/her share of the property’s title passes automatically to the surviving joint tenant(s), without the necessity of probate proceedings.

The survivorship part of joint tenancy is important to understand.  If a Will attempts to give property that is held in joint tenancy, it will fail, because the joint tenancy will prevail over the Will.

Co-ownership of real property commonly takes the form of a "co-tenancy" or "tenants-in-common", rather than joint tenancy.  A co-tenancy allows each co-owner to freely devise his/her share by Will or trust, upon death, to his/her heirs, who may not be co-owners.  Unlike the joint tenancy, a surviving co-tenant has no automatic right of ownership upon the death of another co-tenant.

 If one joint tenant of real property does not wish another joint tenant to receive full title upon her/her death, the joint tenancy must be severed in the manner set out by Civil Code, Section, Section 682.2.  Among other requirements, this section  mandates the recording of a document severing the joint tenancy.  Once a joint tenancy is severed, ownership becomes that of tenants-in-common, with no right survivorship.

At the death of a joint tenant, the deceased's interest in the property passes, automatically, to the surviving joint tenant, by definition of law; however, the surviving joint tenant owner will wish to update the county records to show that the joint tenant has died and the surviving joint tenant has gained ownership of the deceased joint tenant's share of the property.

The simplest method to establish the surviving joint tenant’s sole title, when the property is real property, is by recording an "Affidavit of Death" within the county in which the property is located.  The "Affidavit of Death", which attests to the decedent’s death, must describe the property held in joint tenancy, and must also attach a certified copy of the decedent’s death certificate.

A court proceeding, after the death of one joint tenant, is another way to establish that the ownership of the deceased's share belongs to the surviving joint tenant.  One example when a court procedure must be used, is when a certificate of death of the joint tenant is not available, and it is necessary to present other evidence establishing the death of the joint tenant.

 The rules for clearing title for joint tenancy of personal property are different from real property and depend on the nature of the personal property.  For example, title to a bank account probably could be cleared by showing a certificate of the death of a joint tenant and by signing an affidavit.  Title to a motor vehicle might be cleared by signing a Department of Motor Vehicles affidavit form.  Title for stocks and bonds might be cleared by presenting the death certificate and by signing an affidavit satisfactory to the transfer agent or the corporation itself.  Usually, a stock broker can be very helpful in such instances.

Due to the complexity of this subject, our readers should address specific questions regarding the creation and/or termination of joint tenancy to their own lawyer.

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