By drafting a written will, you are taking an important step to ensure that your hard-earned property and assets go to specific individuals upon your death. However, you may not use your written will to convey certain types of jointly owned property.
You may not use a written will to convey certain property that you jointly own with another individual without that person’s consent. If you own property with another individual communally, or jointly as joint tenants with survivorship rights, you cannot convey your interest to a third party with your will. Instead, if you own property as joint tenants with rights of survivorship, your share passes to the surviving tenant upon your death. In this case, the surviving tenant would own the entire property, and your share is not subject to probate. In the very unusual circumstance that two joint tenants die simultaneously, their wills may govern their property rights upon death.
If you own property as tenants in common, you may convey your share to another party upon your death. Similarly, a joint tenant in common can also convey his share to a third party. Tenants in common do not have to own equal shares of property. Thus, if you purchased a house with a friend, your friend could own a 60 percent interest, and you could own the remaining 40 percent. Upon your death, your share passes to your heirs. Similarly, upon your friend’s death, his 60 percent share passes to his heirs. In contrast to a joint tenancy arrangement, joint tenants in common do not have survivorship rights.
In some states — including New York — husbands and wives can jointly own their property as tenants in common or as joint tenants with rights of survivorship. Instead of owning property as joint tenants with rights of survivorship, you and your spouse would own property as tenants by the entirety, which is a fancy legal label for spouses who are joint tenants with survivorship rights.