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On the other hand, joint tenancy is a distinct property
interest from tenancy in common and community property.9 The
right of survivorship is the chief characteristic that
distinguishes a joint tenancy from other interests in property.
United States v. Jacobs, 306 U.S. 363, 370 (1939); Zeigler v.
Bonnell, 126 P.2d 118, 120 (Cal. Dist. Ct. App. 1942). While a
joint tenancy may be severed by mutual agreement or by a
conveyance by one of the joint tenants during the lives of the
joint tenants, the decedent cannot devise property held by the
decedent and another in joint tenancy. Estate of Sullivan v.
Commissioner, 175 F.2d 657 (9th Cir. 1949), revg. 10 T.C. 961
(1948). Joint tenancy has been characterized as a specialized
form of a life estate, with what amounts to a contingent
remainder in the fee, the contingency being dependent upon which
joint tenant survives. Id. The surviving joint tenant does not
secure that right from the deceased joint tenant, but from the
devise or conveyance by which the joint tenancy was first
created. At the time of decedent's death, decedent's interest in
the property is extinguished, with the joint tenancy
automatically passing to the surviving joint tenant by the
operation of law, avoiding the need for probate.
9 For example, tenants in common own an undivided fraction
of the whole property held as tenancy in common. On the other
hand, joint tenants own the whole property subject to the rights
of the others.
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