conveyance of a moiety to a third party only a conveyance by husband and wife

Conveyance of a moiety to a third party only a

This preview shows page 30 - 32 out of 40 pages.

conveyance of a moiety to a third party; only a conveyance by husband and wife together can do so. • neither husband nor wife, acting alone, has the right to judicial partition of property held as tenants by the entirety. • divorce terminates the tenancy by the entirety because it terminates the marriage, which is a requisite for a tenancy by the entirety; absent some agreement to the contrary, the parties usually become tenants in common. H and W are one person. Tenancy by the entirety cannot be severed by one of the parties. It can only be terminated by both husband and wife acting together. The four units above + marriage. Not all jurisdictions recognize tenancy by entirety. Presumptions • the presumption favoring joint tenancies has been abolished in all states (with an exception in a few states where the conveyance is to husband and wife). Usually the abolition has been accomplished by statute providing that a grant or devise to two or more persons creates a tenancy in common unless an intent to create a joint tenancy is expressly declared. Presumption: In common law joint tenancy was favored. 30
Image of page 30
Today: it’s presumed to be held on tenancy in common. Joint tenancy is created if is expressly declared. Case in Fl. 2001 Beal Bank v. Almand Assoc. 780 So2d 45 “All transfers made to husband and wife are made to them as tenancy by the entirety.” Creditors cannot foreclose on properties hold in tenancy by the entirety if either husband or wife have debts. All bank accounts and whatever things are hold as tenancy by the entirety. Problem p. 342 1. A, B and C joint tenant w/right of survivorship. A conveys interest to D. – A severs the joint tenancy, so D has 1/3 has a tenancy in common. B & C still have 2/3 rd . So now B and C still have a joint tenancy + D hast 1/3 tenancy in common. B dies intestate, leaving H as his heir. So, C takes by operation of law B’s interest = C 2/3 tenancy in common + D 1/3 tenancy in common. p. 343. The granting portion of the deed takes precedent, but there is ambiguity, then the habbendum clause will be considered. How do we avoid probate: by joint tenancy. P. 344: A joint tenant cannot pass her interest in a joint tenancy by will. If a creditor acts during a joint tenant’s life, the creditor can seize and sell the joint tenant’s interest in the property, severing the joint tenancy. If the creditor waits until the death, he does not collect anything. When a joint tenant dies, his share of the jointly held property is subject to federal estate taxation. If the joint tenants are husband and wife, one half is subject to taxation when one spouse dies (but no taxes are paid because of marital deduction). If the joint tenants are not husband and wife, when one joint tenant dies the portion of the value of the jointly held property attributable to the consideration furnished by the decedent is subject to federal estate taxation.
Image of page 31
Image of page 32

  • Left Quote Icon

    Student Picture

  • Left Quote Icon

    Student Picture

  • Left Quote Icon

    Student Picture