How to Change Your Deed from Tenancy in Common to Joint Tenancy (And Avoid Probate)

It is incredibly common for families—such as a mother and child co-owning a mortgage-free home—to intend for a property to automatically pass to the surviving owner upon one's death. Unfortunately, many property owners unknowingly hold a Tenancy in Common deed when they actually need a Joint Survivorship deed.

If your deed is missing a few key phrases, your loved one's half of the property could end up stuck in probate court. Here is exactly what you need to know about your property deed and how to fix it.

Tenancy in Common vs. Joint Tenancy

Understanding how your deed is currently filed is the first step in estate planning. The differences between these two types of ownership dictate what happens to the property when one owner passes away.

Feature	Tenancy in Common	Joint Tenancy with Rights of Survivorship
Ownership Stake	Each owner holds a portion (e.g., a 50% undivided interest).	Each owner owns the property as a whole.
Upon Death	The deceased's share goes through probate court and passes to their heirs at law or will beneficiaries.	The property automatically passes to the surviving owner(s) without probate or court action.
Default Assumption	Yes. If a deed just lists individual names, the law assumes it is a tenancy in common.	No. This ownership type requires specific phrasing on the deed.

The Missing "Magic Words"

Many property owners assume that simply listing two names on a deed means the survivor automatically inherits the property. Often, people do not realize there is a problem until after an owner dies. Even when a deed is prepared by a professional or an attorney, it might be missing the required legal phrasing.

If your deed does not specifically state the "magic words," it is legally assumed to be a tenancy in common. To avoid probate, your deed must explicitly state:

• "Joint owners with rights of survivorship" OR

• "Joint tenants with rights of survivorship" OR

• "With full rights of survivorship"

How to Change Your Deed to Joint Tenancy

If you currently have a tenancy in common deed and want to change it so that 100% of the property goes to whomever survives the other, the fix is relatively straightforward since you are not adding new owners. You have two main options:

1. Execute a New Quit Claim Deed

Because you and the co-owner (e.g., you and your mother) already own the property, you can simply execute a new deed. The most common method is a Quit Claim Deed.

• How it works: Both current owners (acting as the grantors giving the property away) sign a new deed transferring the property to themselves (the grantees).

• The crucial step: When listing your names as the grantees, you must add the phrasing "as joint tenants with rights of survivorship" right after your names.

2. Request a Corrective Deed

Depending on who originally created the deed and the circumstances surrounding it, the current status might just be a clerical error.

• How it works: If a professional or company helped prepare the deed and it was not meant to be a tenancy in common, you can go back to them and request a Corrective Deed to fix the previous mistake.

Next-Level Estate Planning: The Lady Bird Deed

Once you have successfully updated your property to a joint tenancy, you can take your estate planning a step further. You and your co-owner can execute a Lady Bird Deed. This allows you to list one or more beneficiaries who will automatically own the property only after both of the joint tenants pass away, adding an extra layer of protection to your estate.

Need Help in Florida?

Deed adjustments are usually a pretty easy fix, but it is highly recommended to contact a professional to ensure it gets done correctly this time.

If you have questions pertaining to deeds, estate planning, elder law, or probate, and you are located in Florida, don't hesitate to reach out to atCause Law Office. Schedule a Free Consultation.