FILE UNDER: THROWBACK THURSDAY
This was originally posted in July 29, 2009
One of the many vehicles to transfer real property, or real estate, outside of probate is through owning the property in joint tenancy.
There are two forms of real estate ownership in Minnesota when there are multiple owners. The first is tenants in common. In this form of ownership, the parties each own a distinct percentage of the total ownership in the property. For example, if a husband and wife own property, husband owns 50% of the total property and wife owns 50% of the total property. In this form, if one of the parties dies, their distinct percentage transfers through probate.
The other main form of ownership in Minnesota is joint tenancy. In this form, the parties have an undivided interest of the total ownership of the property. In this case, both husband and wife each own 100% of the total property. This may seem like a minor distinction, but it has a big effect. Upon the death of one party, the other party automatically owns the entire property without the probate process.
In order for the property to be owned in joint tenancy, the deed must specifically state that the property is owned as such. For example, "Property X is granted by Mr. X. to Husband and Wife, as joint tenants." If the deed does not specifically state that it is in joint tenancy, then it is owned as tenants in common.
If you own property with another person, and both of you intent that the other should automatically receive your interest without the probate process, review your deed. If the deed does not state "joint tenancy", contact a licensed attorney to execute and record a deed that does.
Update: I've gotten in the habit of asking couples to bring in a copy of their real estate deeds. In most cases, they want their property to automatically go to the survivor. Double checking their deeds now, can help prevent what would be an unnecessary probate. Keep in mind however, that joint tenancy isn't for everyone. It essentially means "survivor wins" and usually isn't a good fit for ownership between siblings.