Concurrent Rights to Possession-Background Property Principles at Work in any Will

Since a testamentary will deals with the disposition of property, principles of property law are constantly in play. And since a will addresses the disposition of property between multiple legal entities, it is common that property principles addressing concurrent rights to possession are involved. Concurrent rights to possession deal with the rights people have to property when those rights are somehow shared with or between multiple entities. Though there can be a great deal of detail regarding these different forms of concurrent interests in property, here are some basics:

Tenancy in Common:

Tenancy in common is considered the default estate, so if you don’t articulate the nature of the concurrent right in a conveyance, it will be a tenancy in common.  A tenancy in common gives the holders the right to separate but undivided interests. Separate because they have distinct interests, but undivided because the property is not divided, so each has the right to possess the whole of the property (which you can imagine leads to disputes). Tenancy in common also has no right of survivorship, meaning that if one interest holder dies, that interest holder’s rights do not automatically transfer to the other interest holder.

Joint Tenancy:

The main distinction between joint tenancy and tenancy in common is the right of survivorship: Under joint tenancy, if A and B have joint tenancy and have a (50/50) in interest in some piece of property, and A dies, B automatically gets a 100% interest in that property and we act as if A never had an interest.

A joint tenancy must be deliberately created. Unlike tenancy in common, there are four requirement (often called unities) that must all be met to create joint tenancy

i.             Time: the interests must be created at the same time

ii.            Title: title must be created by the same instrumen

iii.            Interest: interests must be equal between the interest holders (50/50; 33/33/33; 25/25/25/25; etc.

iv.            Possession: each has to be able to possess the whole

There are numerous ways the principles of concurrent rights to property interact with will drafting and estate execution. For example, an interest in joint tenancy is considered a nonprobate asset. In other words, a will cannot convey an interest in joint tenancy. Any attempt to alter a right in joint tenancy is invalid because the interest passes to the survivor(s) by operation of law.



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