Chapter H. Joint Tenancy

• Jurisdiction: Washington

H JOINT TENANCY

H.1. Introduction

Joint tenancy is one of the most common forms of will substitute, especially with the current emphasis on the avoidance of probate and attorney's fees. The major incident of joint tenancy, of course, which gives it this appeal, is the automatic right of survivorship that attaches to it. Because of this incident, joint tenancy has been referred to as the "poor person's estate plan," and such references give the impression that it is an easy way to leave property to a designated beneficiary without the necessity of a will, the cost of a lawyer, or the bother of probate. It is all of this to some extent, but it is also a potential trap for the unwary and a source of unnecessary litigation when used improperly.

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It is not the purpose of this work to detail all of the intricacies of formation, severance, and general operation of joint tenancy—a matter best left to treatises on property law.²⁷⁴ Only as much will be covered as is necessary for an understanding of joint tenancy as a will substitute.

H.2. Background

Joint tenancy has enjoyed a checkered history in Washington. Abolished (at least as to right of survivorship) by statute in 1885,²⁷⁵ it remained prohibited (except as to special applications, such as joint bank accounts)²⁷⁶ until reestablished in 1962 by Initiative 208, now (as amended) RCW 64.28.010, which expressly promises passage of property "without the cost or delay of probate proceedings."

Because joint tenancy was for so long prohibited in Washington, its reintroduction created some uncertainty as to both its intended operation and its effect on the various devices and institutions, such as community property agreements and joint bank accounts, that had been used over the years to accomplish the same general purposes. A few of the judicial reactions to this situation will be mentioned below.²⁷⁷

H.3. The Joint Tenancy Statute

RCW 64.28.010 establishes "a form of co-ownership of property known as joint tenancy." It applies to both real and personal property, and it has "the incidents of survivorship and severability as at common law." The relationship can be created only by a written instrument that expressly declares the interest to be a joint tenancy. The statute lists the various ways in which joint tenancy can be created: by agreement, deed, will, or other instrument of conveyance, by transfer by and to the owners themselves or to themselves and

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others, including by a husband and wife to themselves or themselves and others, and so on. The rights of creditors are expressly preserved.

If indeed the statutory joint tenancy is to have the "survivorship and severability" incidents as at common law, it must necessarily include the "four unities"—time, title, interest, and possession— that were necessary to create (and loss of which severed) a joint tenancy at common law²⁷⁸ In fact, this has been the interpretation adopted by the courts.²⁷⁹ Thus to the extent not otherwise altered by the statute, joint tenancy in Washington should follow the common law.

Note that joint bank accounts, although sharing many characteristics with joint tenancy, are governed by their own statute and do not necessarily share the common-law incidents and limitations of joint tenancy²⁸⁰

H.4. Creation

As indicated, the joint tenancy must be created in writing.²⁸¹ The precise form and content of the writing is not prescribed, except that it must "expressly declare the interest created to be ajoint tenancy"²⁸² This requirement has been interpreted quite narrowly, one court rejecting the phrase "with rights of survivorship" as not expressly stating that "joint tenancy" was intended.²⁸³ Although the statute's language makes it clear that not all of the eventual joint tenants need sign the creating instrument (for example, transfer may be by the owner(s) to "others" and by will), at least when community property

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is involved (and perhaps in other instances) a "unilateral" statement by a third party in an instrument of conveyance or transfer to the joint tenants is not sufficient.²⁸⁴ There must be some written evidence of an agreement "by the marital community" expressly declaring the joint tenancy²⁸⁵ In light of this narrow interpretation, when possible all joint tenants, and especially husband and wife, should sign the instrument creating the interest²⁸⁶ (using the common-law method of conveyance to themselves if necessary) and make the intention to create a "joint tenancy with right of survivorship" quite explicit.²⁸⁷

Unless a joint tenancy is created or the interest is a partnership or community property (or is acquired by executors or trustees), any interest created in favor of two or more persons is a tenancy in common,²⁸⁸ with no right of survivorship.

As a matter of proof, a nominal title in joint tenancy creates a rebuttable presumption of ownership in that form.²⁸⁹ At one time this presumption applied to joint ownership by husband and wife, although it was considered "met and destroyed" by evidence that the source was community property, and to overcome this showing there had to be "clear, certain and convincing" evidence of an intention to convert the interest to joint tenancy²⁹⁰ Under RCW 64.28.040,

If a joint tenancy of community property is created unilaterally by one spouse and a third party, without the knowledge of the other spouse, it becomes a voidable gift, and the nonconsenting spouse has all of the remedies usually available in this situation. RCW 26.16.030(2); Time Oil Co. v. Independent Petroleum Co., 63 Wn.2d 310, 387 P.2d 86 (1963); In re Yiatchos Estate, 60 Wn.2d 179, 373 P.2d 125 (1962), revd in part, vacated in part, 376 U.S. 306, 84 S. Ct. 742, 11 L. Ed. 2d 724 (1964).

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however, joint tenancy interests held in the name of a husband and wife are presumed to be community property, and they are treated as such in all respects except that the joint tenancy right of survivorship applies.

H.5. Operation

During his or her lifetime each joint tenant has an individual interest in the whole of the property: "an undivided moiety of the whole, and not the whole of an undivided moiety"²⁹¹ In contrast, tenants in common have "several and distinct" titles, an undivided partial interest in the whole, and unity of possession without unity of title.²⁹²

H.6. Severance

At common law, destruction of any one of the four unities of time, title, interest, or possession would sever the joint tenancy and would leave a tenancy in common.²⁹³ Washington has followed this principle under the joint tenancy statute, and...