Joint Ownership with Rights of Survivorship

Undivided Ownership Plus Survivorship

Joint ownership of real property with rights of survivorship (JTWROS) combines two distinct concepts: (1) co-ownership of an undivided fee simple interest in and to the entire property, plus (2) automatic succession to sole ownership upon death of the other co-owner. Applicable law is found in Estates Code Chapter 112 (which governs spousal community property) and Chapter 111 (which applies to non-spouses).

When the right of survivorship exists as a result of a signed written agreement, sole ownership vests in the surviving co-owner automatically without need for notice, probate, or other action by anyone. “A community property survivorship agreement that satisfies the requirements of [Estates Code Chapter 112] is effective and enforceable without an adjudication” (Est. Code Sec. 112.053). In other words, no probate or other legal action is required at the time of a co-owner’s death.

Although commonly used by married couples for their homestead, JTWROS is also available to unmarried persons for any type of real property or account that is held in personal names. A signed written agreement pursuant to the Estates Code is the exclusive means of establishing rights of survivorship in real property, whether the property is characterized as community or separate.

While JTWROS is quite useful as to any given property or account, it is not intended to replace the broader scope of a last will and testament. “The legislature did not intend for [the JTWROS statute] to validate agreements allowing testamentary disposition of a person’s entire estate, including real property, without the requirements of a will or the formalities of will execution” (Hibbler v. Knight, 735 S.W.2d 924 (Tex.App.—Houston [1st Dist.] 1987, write ref’d n.r.e.).

Common Law History

The Estates Code substantially replaces and supersedes existing common law rules including the requirement that JTWROS be established at the inception of title (when the property is first acquired).

The traditional means for achieving ownership accompanied by rights of survivorship was through a deed that conferred joint tenancy with rights of survivorship (JTWROS) upon the grantees. As an example, title would be received into the names of “John Jones and wife, Mary Jones as joint tenants with rights of survivorship and not as tenants in common.” Note that the word tenancy in this context derives from historical common law verbiage. Here, tenant means the co-owner of a fee-simple interest, not a lessee.

The common law imposed additional requirements. A deed conferring JTWROS was required to adhere to the four unities of time, title, interest, and possession. In other words, all joint owners were required to receive their interest in the property at the same time; through the same legal document; with each having an equal and undivided ownership share; and with each having an equal right to possess and use the entire property. While these traditional criteria have been largely superseded by the Estates Code, they remain relevant in cases where there is ambiguity and judicial interpretation is required.

In the absence of a signed written agreement creating JTWROS, Texas co-owners are presumed to be tenants in common (Est. Code Sec. 101.002). This means that in most cases the decedent’s interest passes vertically downward to the heirs rather than horizontally to the surviving co-owner—although the rules of intestate succession (no last will and testament) can get complicated.

Signed Written Agreement

Technical wording is not required in a Texas deed, even a JTWROS deed. “Words previously necessary at common law to transfer a fee simple estate are not necessary” (Prop. Code Sec. 5.001). This flexibility extends to survivorship agreements in that no magic words are required by the Estates Code other than the plain intent to establish a survivorship regime. However, the Code requirement of a signed written agreement must be followed, so a JTWROS deed must contain a complete signed survivorship agreement within its four corners.

Neither notarization nor recordation of a survivorship agreement are required but are nonetheless a good idea.

Clarity on the survivorship issue is required. Between married persons, a “survivorship agreement may not be inferred from the mere fact that the account [or deed title] is designated JT TEN, Joint Tenancy, joint, or other similar abbreviation” (Est. Code Sec. 112.052(d)). Between unmarried persons, a survivorship agreement “may not be inferred from the mere fact that property is held in joint ownership” (Est. Code Sec. 111.001(b)). In other words, co-ownership of property and rights of survivorship are separate and severable legal concepts. An agreement as to survivorship between unmarried persons must be clearly spelled out by use of the words:

with rights of survivorship
will become the property of the survivor
will vest in and belong to the surviving spouse; or
shall pass to the surviving spouse.

A community property survivorship agreement need not use the above words exactly, but the intent must still be clear.

A community property survivorship agreement may be revoked under Estates Code Section 112.054 by signed written agreement; by written notice of one spouse that is delivered to the other; or by sale or other disposition of the underlying property.

Spouses and Non-Spouses

As to married persons, spouses may at “any time agree between themselves that all or a part of their community property, then existing or to be acquired, becomes the property of the surviving spouse on the death of a spouse . . . by means of a written agreement signed by both spouses. . . .” (Est. Code Sec. 112.051 and 112.052).

As to unmarried persons, the statute states that “two or more persons who hold an interest in property jointly may agree in writing that the interest of a joint owner who dies survives to the surviving joint or owner or owners” (Est. Code Sec. 111.001(a)).

Newly-Created JTWROS

There are two practical methods of creating JTWROS when acquiring property for the first time:

1) a survivorship agreement can be executed as a stand-alone instrument (pursuant to Estates Code Section 112.051 for married persons or Section 111.001 for unmarried persons) that is separate from the deed transferring title; or,

2) a survivorship agreement can be incorporated into the deed by which the property is transferred into the two names. This requires creative draftsmanship. Such a combination instrument, when signed at closing by the grantor and both grantees, must fulfil the Code requirement of a signed written survivorship agreement between the new joint owners. When properly done, the deed becomes a contract as well as a conveyance.

The all-in-one approach is the preference for most buyers, who tend to want a traditional JTWROS warranty deed that plainly states survivorship provisions on its face.

Adding a Joint Owner to an Existing Deed

Before the Estates Code (when common law still required observance of the four unities), JTWROS could be created only at the inception of title, when both parties received their property interest. “Adding” someone to such a deed in order to create JTWROS meant transferring the property “out” to a trusted third party who then transfer the property back “in” to the names of the two joint owners with rights of survivorship.

This cumbersome process is no longer required to create JTWROS. Nowdays, the easiest method in such cases is to transfer title from the one existing owner into both names with rights of survivorship, utilizing either a stand-alone survivorship agreement or a new deed transferring title into both names that also meets the signed written agreement requirement of the Estates Code. Either approach requires careful drafting by a real estate attorney.

Selling a Joint Interest

An existing JTWROS agreement does not prevent a co-owner from conveying his or her undivided ownership interest in the property (Fogal v. Fogal, No. 09-21-00264-CV, 2023 WL 3235820 (Tex. App.—Beaumont May 4, 2023, no pet. h.)). Doing so, however, terminates the survivorship agreement between the co-owners since that agreement is personal to those two parties and no others. Thus ownership persists but the right of survivorship evaporates.

JTWROS is not available in cases of percentage interests.

JTWROS AND THE CLOSING DOCUMENTS

JTWROS in the Deed

If JTWROS is desired to be expressly shown in the deed to the buyers at closing—and many buyers do prefer this method—then strategic planning should occur before the earnest money contract is signed. Since neither the TREC nor TAR contracts offer a box to check for the purpose of accomplishing JTWROS in the deed, a custom clause must be added to the contract.

A good solution is to attach a special provisions addendum to the contract, prepared by the buyer’s attorney, that fully addresses the JTWROS issue and outlines how it will be handled at closing. It is optimal to provide that the buyer’s attorney will draft the warranty deed so as to comply with Estates Code requirements. This is a slight variance from Texas custom since the seller usually prepares the deed; but arrangements can easily be made for the seller to review and approve a JTWROS deed prior to closing. Allowing for review and approval usually overcomes any seller resistance.

Leaving JTWROS to the Title Company

Insuring that the buyers will receive a JTWROS deed at closing requires advance planning at the contract stage. It is not prudent to assume that deed-drafting issues can safely be left for later or will somehow take care of themselves. TREC and TXR contracts do not have much to say about the content of closing documents; accordingly, all main points pertaining to how these documents will be drafted should be (1) negotiated and settled before the contract is signed and then (2) reflected in a contract special provision or in a custom addendum.

It is a mistake to rely on title company attorneys to produce custom provisions or agreements for any of the closing documents. They are under no obligation to do so without specific instructions agreed upon by both parties. Unless such instructions are given, title attorneys will produce only minimalist instruments that include no custom special provisions. There is no incentive to favor buyer or seller.

One should recall that title company attorneys exist to represent the interests of the title company, not the buyer or seller. It is not their purpose to serve as everyone’s general legal advisor. This is a persistent problem in residential transactions where buyer, seller, and even the brokers often view the title attorney as being available to advise and “represent everyone.” This is definitely false. Buyer and seller should each consult their own attorney as they are advised to do in paragraph 23 of the TREC 1-4 Contract.

The seller cannot be compelled to agree to JTWROS or any other custom deed clauses unless the contract calls for the inclusion of such language. As a rule, if custom special provisions of any kind are anticipated in any closing documents then these should be expressly provided for in the contract or in a signed addendum or contract amendment.

General Versus Special Warranty Deed

A general warranty deed is preferred by buyers because it contains the most expansive warranty of title, going all the way back in the chain to the sovereign. In a GWD, the grantor is bound to defend against title defects even if those defects were created prior to the grantor’s period of ownership. In a special warranty deed, title is warranted only coming out of the grantor and no further back than that. The grantor’s liability for title defects is thus limited to his period of ownership.

When it comes to taking title as JTWROS, either a general or special warranty deed may be used. Even a deed without warranties can work. Why? Because it is not the grantor’s title warranties (arising from the past) that are at issue, but how title will be taken by the grantee going forward.

Stand-Alone Survivorship Agreement

For generations, crafting a warranty deed to achieve JTWROS was the way to achieve co-ownership linked to survivorship. However, with the advent of the Texas Estates Code in 2014, JTWROS may now be achieved by a stand-alone signed agreement—and it is fine to do it that way, as a written contract that does not convey title to anything. An advantage to this approach is that no consent or involvement is required on the part of the seller or the title company. The signed written agreement just becomes another document to be signed at closing. Again, however, many buyers simply prefer a more traditional approach; they want a unified JTWROS warranty deed and dislike the idea of having survivorship provisions relegated to a separate agreement that is outside the four corners of the deed.

RELATED DEED TYPES USED FOR ESTATE PLANNING

There are other deed types that can be used to achieve results similar to a JTWROS deed. It is worthwhile to briefly summarize these:

1. Transfer on Death Deed. A transfer on death deed (TODD) is an uncomplicated, non-probate method of transferring title to real estate when the owner dies. The Texas Real Property Transfer on Death Act is found in Estates Code Chapter 114. Section 114.051 states that “An individual may transfer the individual’s interest in real property to one or more beneficiaries effective at the transferor’s death by a transfer on death deed. . . .”

A TODD must be recorded. It is effective without consideration and without notice or delivery to or acceptance by the designated beneficiary during the life of the grantor (Est. Code Sec. 114.056). However, vesting is not immediate. A TODD transfer does not actually vest title in the grantee until the grantor’s death.

Certain limitations go along with the TODD format. A TODD cannot be revoked by a last will and testament but can be revoked by a recorded revocation (Est. Code Sec. 114.052). In fact, a TODD is revocable even if the instrument states otherwise. Also, if the grantor sells the property by means of a recorded transfer subsequent to executing a TODD, then the TODD is automatically revoked: “If a transferor during the transferor’s lifetime conveys to any person all of the transferor’s interest in real property that is the subject of a transfer on death deed, the transfer on death deed is void as to that interest in real property” (Est. Code Sec. 114.102). Also, a TODD may not be executed by means of a power of attorney. It must be executed by the named grantor.

All in all, a TODD is a good basic estate planning method, particularly if the grantee does not require warranties of title (which are not permitted under Estates Code Section 114.103(d)).

2. Lady Bird Deeds. Lady Bird Deeds, an older method of property planning, are revocable deeds retaining a life estate in the grantor. Since TODDs are authorized by a relatively recent statute, the use of Lady Bird Deeds has declined but are still a valid means of conveyance.

Lady Bird Deeds are sometimes called enhanced life estate deeds since the life estate retained by the grantor is entirely revocable. In other words, a Lady Bird Deed immediately vests a remainder interest in the grantee that is subject to divestment, meaning that the grantor has the option to revoke the whole conveyance at will. Any other, subsequent conveyance of the property by the grantor will also have the effect of revoking a Lady Bird Deed.

Lady Bird Deeds are based not on statute but on common law. The Texas Supreme Court states that a Lady Bird deed is “a deed that allows a property owner to transfer ownership of the property to another while retaining the right to hold and occupy the property and use it as if the transferor were still the sole owner.” Tex. HHS Comm’n v. Est. of Burt, No. 22-0437, 67 Tex. Sup. Ct. J. 622, 2024 Tex. Lexis 316 (May 3, 2024).

Lady Bird Deeds have been traditionally used to both (1) avoid probate and (2) prevent recovery against a deceased grantor’s probate estate by the Texas Medicaid Recovery Program. When a Lady Bird Deed is used, Medicaid does not require that the deceased’s home be sold in order to pay reimbursement to the Program. Note, however, that a TODD accomplishes this same objective since Property Code Section 114.106(b) expressly provides that real property transferred by means of a TODD is not considered to be a part of a deceased grantor’s estate.

A Lady Bird Deed may be “activated” on behalf of the heirs by recording a simple affidavit of death stating that the grantor has died. No affidavit of heirship is necessary.

3. Deed into a Living Trust. The advantages of living trusts are significant, which accounts for their multi-state popularity. In establishing a living trust that includes the homestead, it is an essential part of the process to deed the home into the living trust (or, more properly stated, into the trustees acting on behalf of the trust). The deed is recorded but recordation of the trust agreement is not required.

Since record title is held by the living trust (acting by and through its trustees), and the trust does not die, the surviving beneficiaries automatically “inherit” the trust property upon death of the trustor (or for married persons, upon death of the last spouse-trustor). There is no need for probate or other legal action, although the beneficiaries would be wise at that point to engage an attorney to overhaul and update the trust agreement for future use.

In order to preserve the homestead tax exemption, both the trust agreement and the deed into trust must be carefully drafted so as to meet the “qualifying trust” requirements of Property Code Section 41.0021 and Tax Code Section 11.13(j). The requirements are complex.

4. Deed in the Drawer. Executing and delivering a deed without immediately recording it can be a useful, inexpensive estate planning device—sometimes called the deed in the drawer, a variation of a gift deed. If, for example, a parent wants to insure that property is transferred to a child without probate or other difficulty then the parent can sign and deliver a deed with the intention that it be held (unrecorded) until death. This is an entirely legal method that has been used for ages, but has the weakness that such deeds are often lost in time.

Conclusion

JTWROS is an effective means of estate planning and probate avoidance for a single real estate asset. When considering using this approach, a buyer should make provision at the contract stage to insure that the seller and the title company will agree to the appropriate documentation at closing.