A key aspect of assets owned by two or more people in joint tenancy is a right of survivorship. This means that when one of the joint owners dies, full ownership transfers to the survivor(s) automatically by operation of law. There are, however, occasions on which it is desirable to have the right of survivorship removed from jointly held assets. It may be that one of the joint owners wishes to achieve alternative estate planning objectives or the situation may be one for which the legal regime seeks to deliver fairness to disadvantaged parties.
For example, special statutory provisions are made for matrimonial homes on the death of an owner spouse. Where a matrimonial home is owned by a spouse in joint tenancy with a third party, the joint tenancy is deemed to have been severed immediately before death. This ensures that a one half interest in the matrimonial home will remain in the deceased’s estate to satisfy an equalization claim of the surviving spouse under family law. It has been said that the further objective of this provision is to preserve the surviving spouse’s right to possession of the matrimonial home, rent free for a sixty day period following the death of the deceased spouse. The right to possession is provided under family law legislation and can be asserted against the deceased spouse’s estate. If the joint tenancy were not severed, there would be no remaining interest held by the deceased spouse’s estate against which the right to retain possession could be claimed because the interest would have transferred to the surviving third party owner.
A spouse may also choose to unilaterally sever the joint tenancy in the matrimonial home, including to avoid an unfair result should the marriage breakdown and, with net family properties calculated, to lessen the equalization payment that would otherwise result in this regard. Of course, by doing this, a one half interest held by the deceased as a tenant-in-common with the surviving spouse is part of the estate. This would mean that it is available to satisfy claims of the deceased spouse’s creditors and estate administration tax would be payable on it should an application be made for a certificate of appointment of estate trustee.
As mentioned earlier, a joint tenant may simply decide that they wish their interest in the property to be transferred to a third party on their death rather than the surviving joint owner. By transferring the property into a tenancy in common joint ownership, each owner’s share would fall into their respective estates on death to be dealt with according to their will or to relevant law if they die leaving no will. Again, the deceased owner’s interest would be subject to creditor claims and attract estate administration tax.
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Andrea Kelly, Lawyer, has extensive experience in wills, trusts, powers of attorney and estate administration matters. She provides clients with a high standard of timely professionalism and expertise, incorporating a very thorough fact finding process. This is quite often enlightening for her clients and facilitates individually tailored services. If you would like to know more, feel free to use the easy contact form or read Andrea’s bio.