Can a Will Override a Joint Tenancy Agreement?
Jan. 22, 2026
Buying property with someone else is a big step. Whether it’s a spouse, a business partner, or a family member, how you choose to hold that title matters immensely. One common method is "joint tenancy." But what happens when life moves on, circumstances change, and you decide to write a will leaving your share of that property to someone else? Does the will win, or does the original agreement stand firm?
At Davidson Estate Law, we often see this confusion. We have spent more than 25 years helping families sort through these exact questions. We pride ourselves on being more than just document drafters; we are partners in planning your legacy. We serve clients across the entire Bay Area, including Oakland, Walnut Creek, Berkeley, San Francisco, El Cerrito, and Alameda.
Real estate laws and estate planning rules can clash in unexpected ways. If you own property as a joint tenant but try to leave your interest to a different beneficiary in your will, you might accidentally disinherit someone you love—or create a legal mess for your heirs. That is why seeking professional legal counsel is so important before you finalize any documents. We want to help you get it right the first time.
Understanding Property Ownership Types
To understand why a will might fail to control a specific asset, we first need to look at how property ownership works. The way you hold the title dictates what happens to that property when you pass away.
Sole Ownership
This is the simplest form. You own the property entirely in your name. If you die, the property becomes part of your probate estate. In this case, your will absolutely controls who gets it. If you don't have a will, state law decides for you.
Tenancy in Common
This is popular among business partners or unmarried couples. Each person owns a specific percentage of the property. It doesn't have to be 50/50; it could be 80/20 or any other split. Crucially, when one owner dies, their share does not automatically go to the other owner. Instead, it flows into their estate. This means you can use your will to leave your share of a tenancy-in-common property to anyone you choose.
Joint Tenancy
This is the ownership structure that causes the most confusion regarding wills. Joint tenancy is distinct because it includes the "Right of Survivorship." This legal concept means that when one joint tenant dies, their interest in the property immediately vanishes and transfers to the surviving owner(s). It happens automatically. It does not pass through probate.
The Power of the "Right of Survivorship"
The "Right of Survivorship" is a powerful tool. It overrides almost everything else because the transfer happens at the exact moment of death. By the time a will is read or submitted to probate court, the deceased person technically no longer owns that property interest. It has already been absorbed by the surviving joint tenant.
So, the short answer to the question "Can a will override a joint tenancy agreement?" is generally no.
Even if you write a will explicitly stating, "I leave my share of the house to my daughter," that clause will be ignored if the deed says you own the house as "Joint Tenants with Right of Survivorship" with your ex-spouse or sibling. The surviving owner gets the whole pie, and your daughter gets nothing of that asset.
Common Scenarios Where This Goes Wrong
We often see heartbreaking situations arise from this misunderstanding. Here are a few examples of how relying on a will rather than checking the deed can cause problems.
The Second Marriage
Imagine a husband and wife own a home as joint tenants. The wife passes away, and the husband becomes the sole owner. Years later, he remarries. He puts his new wife on the deed as a joint tenant to ensure she has a home if he dies. Later, he writes a will leaving his half of the house to his children from his first marriage.
Upon his death, the joint tenancy takes precedence. The new wife becomes the sole owner of the house. The children from the first marriage receive no share of the property, regardless of what the will said.
The Helpful Child
An elderly parent wants help managing their finances, so they add an adult child to the deed of their house as a joint tenant. The intention is just for convenience, not necessarily to give that one child the whole house. The parent’s will says, "Divide all my assets equally among my three children."
Upon the parent’s death, the house passes entirely to the child on the deed. The other two siblings have no legal claim to the home, even though the parent’s will clearly stated they should share everything. This frequently tears families apart.
The Forgotten Ex
A couple buys a home as joint tenants. They get a divorce, but in the chaos of separating, they forget to change the deed to the house. One partner writes a new will leaving everything to their parents. If that partner dies before the deed is updated, the ex-spouse could legally claim full ownership of the home, leaving the parents with nothing.
California Laws Governing Joint Tenancy and Wills
In California, the law is quite strict about respecting the Right of Survivorship. Under the California Civil Code, a joint tenancy creates a distinct legal status that separates the property from the decedent's probate estate.
Because a will only governs assets that go through your estate (probate assets), it has no power over joint tenancy property. The transfer is considered "non-probate."
However, California allows a joint tenancy to be severed without the other owner's permission. Under California Civil Code § 683.2, a joint tenant can execute a written declaration to "sever" the joint tenancy. This unilateral action converts the ownership into a "Tenancy in Common."
Once the ownership is converted to a Tenancy in Common, the Right of Survivorship is gone. At that point, your share of the property does become part of your estate, and your will can dictate who receives it.
This is a specific legal maneuver that must be recorded correctly. You cannot simply write a note in your diary. The document usually needs to be recorded in the county where the property is located before the joint tenant dies. If you try to sever the tenancy secretly and die before recording the document, California courts generally will not honor the severance, and the Right of Survivorship will stand.
It is also worth noting that California recognizes "Community Property with Right of Survivorship" for married couples. This functions similarly to joint tenancy but comes with different tax implications regarding the "step-up in basis." Choosing between these forms of ownership requires careful analysis of your tax situation and inheritance goals.
How to Fix the Conflict
If you realize your current deed conflicts with your estate planning goals, don't panic. We can fix this, but we need to act while you are still able to sign legal documents.
Review your deeds: The first step is checking exactly how you hold title. Don't assume; look at the actual recorded deed.
Sever the joint tenancy: If you want to leave your share to someone other than the co-owner, we can help you prepare and record a severance document. This changes the ownership to Tenancy in Common.
Update your trust or will: Once the title is corrected, we can update your will or transfer the asset into a Revocable Living Trust. A trust is often a superior tool because it avoids probate entirely and gives you more control over how and when beneficiaries receive assets.
Communicate: While not legally required, telling family members about your plans can prevent shock and resentment later.
Why You Need a Comprehensive Plan
Relying on a single document, such as a will, without considering the whole picture is a recipe for trouble. Estate planning is like a puzzle. Your will, your trusts, your beneficiary designations on insurance policies, and your property deeds all need to fit together perfectly. If one piece is jammed in the wrong way, the whole picture gets distorted.
We believe in reviewing every asset you own to verify that the title and beneficiary designations align with your wishes. It is better to spend a little time sorting this out now than to leave your family with a confusing legal battle later.
Estate Planning Attorney in Oakland, California
Planning for the future of those you love is one of life's most significant responsibilities. For over 25 years, our firm has served as a pillar of support and guidance for families across the Bay Area. At Davidson Estate Law, we recognize the emotional weight these decisions carry, and we are here to shoulder that burden with you. Whether you need to create a will, establish a revocable living trust, handle asset management, or handle probate matters, we are prepared to assist. Let’s connect and secure your legacy.