Joint tenancy

Key Takeaways

• RCW 64.28.010 authorizes joint tenancy in Washington so that property passes to the survivor without the cost or delay of probate proceedings.
• A Washington joint tenancy is created only by a written instrument that expressly declares the interest created to be a joint tenancy.
• RCW 64.28.020(1) makes every interest created in favor of two or more persons an interest in common unless the instrument declares a joint tenancy, or the interest is acquired in partnership or by executors or trustees.
• RCW 64.28.040 presumes that joint tenancy interests held in the names of both spouses or both domestic partners are community property, and either one of them may sever the joint tenancy.

What It Means

Joint tenancy is co-ownership with a transfer at death built into it. Two or more people hold the property together, and when one of them dies that share moves to the survivors by operation of law. Nothing passes under a will, and nothing waits on a court. RCW 64.28.010 opens with the reason: joint tenancy with right of survivorship permits property to pass to the survivor without the cost or delay of Probate proceedings.

It is not a cage the owners cannot get out of. The same statute gives a Washington joint tenancy the incidents of survivorship and severability as at common law, including the unilateral right of each tenant to sever the joint tenancy. One owner can break it without asking anyone, which converts that owner's share into a Tenancy In Common interest that will then pass to heirs like any other asset. The statute also protects lenders, closing with a proviso that such a transfer shall not derogate from the rights of creditors. So the survivor takes the property, but the property arrives carrying whatever the creditors already had a claim on. Joint tenancy is a probate shortcut, not a shield.

How It Works in Washington

Washington is strict about how a joint tenancy comes into existence. RCW 64.28.010 says joint tenancy shall be created only by written instrument, which instrument shall expressly declare the interest created to be a joint tenancy. It can be created by a single agreement, transfer, Deed, will, or other instrument of conveyance, or by a transfer from a sole owner to himself or herself and others, or from tenants in common to themselves, or when granted or devised to executors or trustees as joint tenants. What it cannot be created by is intention, habit, or an assumption at the escrow table. RCW 64.28.020(1) closes the door: every interest created in favor of two or more persons in their own right is an interest in common, unless acquired in partnership for partnership purposes, unless declared in its creation to be a joint tenancy, or unless acquired by executors or trustees. A deed reading only Rosa Delgado and Miguel Delgado creates a tenancy in common in this state.

Then comes the community property overlay that surprises brokers who trained elsewhere. RCW 64.28.040(1) presumes that joint tenancy interests held in the names of both spouses or both domestic partners are their community property, the same as other property held in both names. Such an interest still passes to the survivor as property held in joint tenancy, but in all other respects it is treated as Community Property. Subsection (2) lets either spouse, or either registered domestic partner, sever the joint tenancy alone, and after a severance the property or its proceeds are presumed community property whether the title reads one name or both. Vesting is a legal decision with tax and estate consequences, so send the owners to their attorney and keep your own language out of the deed. Our guide to estates in land covers the vocabulary a seller will hear in that conversation.

Example

Rosa Delgado and her brother Miguel buy a Yakima duplex for $455,000. They tell their attorney they want the survivor to keep the building, so the deed is drawn to Rosa Delgado and Miguel Delgado, as joint tenants with right of survivorship. That express declaration in a written instrument is exactly what RCW 64.28.010 requires, and it is the whole reason the arrangement works later.

Four years on, Rosa dies. Her will leaves everything she owns to her daughter Camila. The duplex is not part of everything she owns. Rosa's half moved to Miguel at the moment of death, so Camila receives nothing from it, and Miguel owns the full $455,000 property. Rosa's creditors are a separate question, because RCW 64.28.010 provides that the transfer shall not derogate from their rights.

Change one phrase and the result flips. Had the deed read only to Rosa Delgado and Miguel Delgado, RCW 64.28.020(1) would have made it an interest in common. Rosa's half would then pass under her will, Camila would own half a duplex alongside an uncle who never planned on a co-owner, and the two of them would be negotiating a sale neither one wanted. Our overview of life estates and related terms shows how the other Washington ownership forms behave when an owner dies.

Common Mistakes and Exam Traps

• Joint tenancy carries the right of survivorship and tenancy in common does not. RCW 64.28.020(1) makes tenancy in common the Washington result whenever the instrument is silent.
• A will cannot defeat survivorship. The surviving joint tenant takes the share by operation of law, so the share never reaches the estate the will controls.
• In Washington the statutory test is an express written declaration of joint tenancy, so a deed that simply names two owners does not create one no matter what the owners intended.
• A joint tenancy held in the names of both spouses or both domestic partners is presumed community property under RCW 64.28.040, so it is not separate property just because the deed says joint tenants.