In Florida, one category of real property ownership is through a Joint Tenancy. Joint Tenancy is generally employed by spouses, persons not formally married, and various members of families. A corporation or LLC does not qualify as a party to a Joint Tenancy.
A Joint Tenancy with the Right of Survivorship means that when one of the parties deceases, the deceased’s share passes automatically to the surviving tenant without the necessity of probate.
In the case of a Joint Tenancy with no provision for a right of survivorship, when one person deceases, his ownership interest in the property is the subject of probate, and the surviving tenant with no right of survivorship retains whatever ownership interest remains.
If the chosen heir to the property in the decedent’s will contradicts the disposition of the property pursuant to the Joint Tenancy or the Joint Tenancy with the Right of Survivorship, then the latter two forms of disposition shall prevail.
In a Joint Tenancy with Right of Survivorship the original owner should be aware that by adding a joint tenant or tenants may subject the owner to the collection efforts leveled by the other tenant or tenants’ creditors. This may include the forced sale of real property, which in the case of family members, generally involves a homestead or residential property.
Joint Tenancy is subject to being encumbered, liens, or levied by creditors and the subject of individual judgment liens.
Furthermore, when the deed is altered to add the adult child as a joint tenant, such action may be determined to be an uncompensated gift, which may affect Medicaid eligibility and long-term care.
Other devices provide the automatic transfer of property, outside of probate, and without many of the potential difficulties presented in a Joint Tenancy or Joint Tenancy with Right of Survivorship, including Tenancy by Entireties, Trusts, and Real Estate Deeds.
The parties acquiring the Joint Tenancy must share the four unities of “possession, title, time, and interest. To form a Tenancy by Entireties, only one unity is added, that of marriage.