The Default: Tenancy in Common
When real estate or other property is granted to two or more people, the default ownership form is a tenancy in common. Joint tenancy does not arise automatically. The only exceptions are grants in trust, grants to executors, or grants to spouses.
Except as otherwise provided in this section, all grants and devises of real property made to two or more persons create estates in common and not in joint tenancy, except grants or devises in trust, or to executors, or to husband and wife.
A.R.S. § 33-431(A)This matters because tenancy in common and joint tenancy work very differently at death. With tenancy in common, each owner's share passes through their estate, which may require probate. With joint tenancy, the surviving owner receives the deceased owner's share automatically. Understanding this distinction can also affect tax benefits tied to the property.
Creating and Ending Survivorship Rights
To create joint tenancy with right of survivorship, the deed must use express language declaring it. The same applies for married couples who want community property with right of survivorship. The law also allows an owner to create joint tenancy by transferring real estate from themselves to themselves and another person.
Ending the right of survivorship is equally deliberate. Either spouse can end community property with right of survivorship by recording an affidavit in the county recorder's office. For joint tenancy, any joint tenant can record a similar affidavit. Recording the affidavit does not destroy the ownership interest. It only removes the automatic transfer at death.
In the case of real property owned as joint tenants with right of survivorship, the right of survivorship is extinguished as provided in section 14-2804 or on the recordation in the office of the recorder of the county or counties where the real property is located an affidavit entitled "affidavit terminating right of survivorship" executed by any joint tenant under oath.
A.R.S. § 33-431(E)For families making decisions about how to title property, these distinctions are essential. The wrong form of ownership can mean the difference between a smooth transfer at death and a probate proceeding that takes months to resolve.