How do You Create Joint Tenants with Right of Survivorship in a Deed? | Estate Planning Newsletter

In the case of the Estate of Thomas Lee Griffin, the Court of Appeals dealt with the method by which a Grantor can create a joint tenant with right of survivorship to the Grantee in a deed. What created the issue in the case was that in the “granting clause” in the deed (where the Grantor transferred title to the Grantee), the language did not indicate it was to be joint tenants with right of survivorship. However, later in the deed in the section called the “advisement section,” the survivorship language was included where it read that “It is the intention of the Grantor and Grantee by this conveyance to create a joint tenancy with right of survivorship.”

The Trial Court ruled that the Deed did not create joint tenants with right of survivorship because that language was not included in the “granting clause” of the deed. However, the Court of Appeals reversed by explaining that the overriding legal principle is to determine the intent of the parties.

The Court of Appeals explained that if parties seek to include a right of survivorship in either a joint tenancy or tenancy in common, they must do so by including clear language to that effect in the granting instrument. The Court wrote that the language in the deed showed the intention of the Grantor and the Grantee to create a joint tenancy with a right of survivorship and as such, the deed contained sufficient language to attach a right of survivorship in the Grantee of the property.

The Court explained further that the primary task in interpreting the deed is to ascertain the Grantor’s intent from the words of the deed as a whole and from the surrounding circumstances and not from just one portion of the deed. Further explanation by the Court was that the true rule is to look at the whole instrument without reference to formal divisions in order to ascertain the intention of the parties and not permit antique technicalities to override such intention. Accordingly, the location of the survivorship language in the deed is largely irrelevant to determine whether the language is sufficient to attach a right of survivorship to the tenancy in common.

MY RECOMMENDATION: When intending to create a certain ownership rights in a deed, the Grantor should be as precise as possible. Even though the Grantor and Grantee won this case, the failure to put the right of survivorship in the granting language resulted in a trial and an appeal before the ultimate disposition of the case was made.

Yours very truly,
RAINEY, KIZER, REVIERE & BELL, P.L.C.
William C. Bell, Jr., Attorney at Law

This letter is intended to provide you with ideas for consideration in commercial transactions.  It is not intended to give a general solution applicable to all apparently similar individual problems, since slight changes in facts may require variance in legal advice.  Please contact legal counsel with specific questions.