So, let’s talk a little bit about the language to use when creating a joint tenancy.
As we discussed, under the traditional common law, a conveyance to two or more persons was presumed to create a joint tenancy, unless the grantor clearly manifested an intent to create a tenancy in common.
However, as we just saw in Palmer v. Flint, the common law presumption has been reversed—usually by statute—so that today a conveyance or devise “to A and B and their heirs” is presumed to create a tenancy in common.
If you wish to create a joint tenancy today, the conveyance must clearly manifest an intention to create a joint tenancy with right of survivorship. Thus, Grantor conveys:
“to A and B and their heirs, as joint tenants with right of survivorship and not as tenants in common.”
That should do the trick.
However, you need to be familiar with the law in the relevant jurisdiction. For example, take a look at Note 8 on page 405:
Michigan construes the language “as joint tenants with rights of survivorship and not as tenants in common” as creating “an indestructible joint tenancy."
I think that is a crazy decision, but if you practice in Michigan you will need to know how to deal with this decision.
