Tayler W. Tibbitts
Published October 2021
Joint tenancies have long been utilized by real property owners to hold and transfer real property at death. However, certain statutory changes undergirding the availability and preference for other forms of concurrent real property ownership in the State of Idaho have raised questions among real property and estate planning practitioners regarding joint tenancies’ continuing viability and efficacy. This article identifies the historic and current law regarding real property joint tenancy in Idaho and offers a temporary title insurance-based solution to address some lingering uncertainty.
Understanding Differences between Joint Tenancies, Tenancies in Common, and Community Property with Right of Survivorship
Historically, “attending the creation of a concurrent ownership in land was [the presumption] that the parties intended to create a joint tenancy.” Despite a joint tenancy at one time being the “default rule,” its creation still necessitates four unities: time (each joint tenant acquired his interest in the property at the same time), title (each joint tenant acquired title by the same instrument), interest (each joint tenant has an equal interest in the property) and possession (each joint tenant has the same right as the other joint tenants to possess the entire property).
Over time, however, the joint tenancy has become less favored, and Idaho, along with many other states, passed statutes that propped up the tenancy in common as the presumed form of concurrent ownership unless otherwise “declared in its creation to be a joint interest, or unless acquired as community property.” This declaration must be “expressly declared in the grant or devise” in order to move the needle from tenancy in common to some other form of concurrent ownership. 
The four unities set forth above distinguish the joint tenancy from the tenancy in common by limiting a joint tenant’s ability to alienate or encumber its interest in the real property. But these burdens are often tolerated due to a key distinguishing byproduct of a joint tenancy: the “the right of survivorship, whereby the death of one joint tenant terminates the joint tenancy and vests complete title in the surviving joint tenant [or tenants].”
The joint tenancy is not the only estate in real property with a right of survivorship. For instance, a married couple may hold real property as “community property with right of survivorship.” Such an estate in real property “is created by a grant, transfer or devise to a husband and wife, when expressly declared in the grant, transfer or devise to be an estate in community property with right of survivorship.”
Further, at least one of the unities required of a joint tenancy is not required of this concurrent ownership form, namely the right of title: the statute permits “[a]n estate in community property with right of survivorship [to] be created by grant or transfer from a husband and wife, when holding title as community property or otherwise, to themselves or from either husband or wife to both husband and wife when expressly declared in the grant, transfer or devise to be an estate in community property with right of survivorship.”
This community property right of survivorship is recognized as a “non-probate transfer” under the Idaho probate code, which makes it a valuable estate planning tool that eases the administrative burden and cost of transferring real property from a decedent to his or her heirs through circumventing probate.
Real Property Joint Tenancies are Still Relevant and Valid
The statutory presence and established availability of the community property right of survivorship as a non-probate estate planning tool for married persons abrogates in part the import of the joint tenancy for that segment of real property owners. Nevertheless, many people who are not married to one another desire to hold property together and create a means to pass real property outside of probate.
Therefore, the question remains: What of real estate joint tenancies in Idaho? And perhaps the question can be further framed: What of real estate joint tenancies for joint tenants not married to one another in Idaho?
Firstly, “Idaho continues to recognize joint tenancies between two persons as a valid and enforceable means of concurrent ownership of property, whether real, personal, tangible or intangible.” Further, there is no marital requirement of joint tenants. This underscores the key initial position that, although “real property transfers … must adhere to stringent statutory requirements for creating a valid deed,” a deed creating a joint tenancy between two or more joint tenants who are unmarried is validly vested.
The second aspect—whether the death of a joint tenant triggering the right of survivorship also constitutes a non-probate transfer like the community property right of survivorship—is more complex.
One section of Idaho’s Probate Code excludes “a survivorship interest in a joint tenancy of real estate” from the definition of a non-probate transfer. However, the exclusion is specifically limited to “this section,” namely Idaho Code §15-6-107, which addresses the “liability of nonprobate transferees for creditor claims and statutory allowances.” The meaning of a “non-probate transfer” is not provided in the code’s general definitions, and this one section would be a peculiar place to establish a blanket definition.
Equally likely is that “a survivorship interest in a joint tenancy of real estate” was instead meant to be excluded only from the specific rules regarding creditor claims promulgated in that section. Indeed, section 15-6-107 subjects non-probate transferees to liability for creditors’ allowed claims against the decedent’s probate estate. And there is good reason to treat the assets typically involved in non-probate transfers, i.e., retirement accounts, joint bank accounts, etc., differently from real property, including “the clear policy favoring free alienability and liquidity of assets,” which is of particular relevance to real property.
The rest of the Idaho Real Property and Probate codes appear silent on the matter. However, in the iconic case In re Bogert’s Estate, the Idaho Supreme Court did imply in framing the respondent’s contention that if a joint tenancy with right of survivorship was validly established, then the assets would pass to the surviving joint tenant “outside of the will, by right of survivorship and should be excluded from the decedent’s probate estate.”
Without case law dictating otherwise, Bogert’s Estate offers additional support to the proposition that the transfer of real property from a deceased joint tenant to the surviving joint tenant or tenants is a non-probate transfer, to be addressed in the same manner as when a surviving spouse takes under a community property with right of survivorship.
Insurable Title is Not Marketable Title, but It’s Often an Acceptable Substitute
To further assuage concerns, however: enter the concept of insurable title. As the Idaho Court of Appeals has reminded, “insurable title is not a substitute for marketable title.” Marketable title means “free and clear of all encumbrances,” or “a reasonably prudent person, familiar with the facts and apprised of the question of law involved, would accept the title in the ordinary course of business,” or does not “invite or expose the party holding it to litigation.”
Insurable title, simply put, “means [only] that the property is capable of being insured.” However, a buyer under a real estate contract may waive the closing condition requiring marketable title as to a certain issue if title insurance may be procured to insure over that issue in a way that satisfies the buyer.
As a result, where the right of survivorship is well established for joint tenancies, both in Idaho statutory and common law (as discussed above), a title company may in many circumstances insure a transaction that involves a transfer of real property out of a decedent’s estate via an affidavit of survivorship (rather than requiring probate), regardless of whether that survivorship right is via joint tenancy (and joint tenants who are not married to each other) or the statutory community property with right of survivorship mechanism.
The above-outlined approach to effectuating the transfer from deceased joint tenant to surviving joint tenants ensures the continued benefits of passing property via survivorship rather than testamentary means. It also prevents the otherwise differential treatment of married versus non-married joint tenants.
Of course, a statutory mechanism that codifies the process would alleviate any marketability of title issues. But in the meantime, many Idaho real property transactions involving rights of survivorship are nevertheless not being unduly burdened or delayed by the time and expense of probate thanks to title insurance.
Tayler Tibbitts serves as general counsel and commercial department manager for Empire Title (formerly NexTitle). He is from Salmon, Idaho, and currently resides in Kuna with his wife and five children. He also serves as a commissioner for the Kuna Urban Renewal Agency, as a board member for Boise Valley Habitat for Humanity, and as a trustee for the Gem Prep Charter Schools Board. Outside of work he can be found exploring the Idaho backcountry with family and friends.
 In re Cooke’s Estate, 524 P.2d 176, 184 (Idaho 1973) (internal quotations and citations omitted).
 See Ogilvie v. Idaho Bank & Trust Co., 582 P.2d 215, 220 (Idaho 1978) (citing 2 American Law of Property § 6.2 (A. Casner ed. 1952); W. Burby, Real Property § 94 (3d ed. 1965); 4 G. Thompson Real Property § 1779 (1961); 48 C.J.S. Joint Tenancy § 4 (1947)).
 Idaho Code § 55-104. See also Cooke’s Estate, 524 P.2d at 186 (supporting the proposition that the joint tenancy is a distinct and viable way in which to hold property in Idaho: “Property held in joint tenancy between husband and wife is not community property.”).
 Idaho Code § 55-508 (“Every interest in real estate granted or devised to two (2) or more persons, other than executors or trustees, as such constitutes a tenancy in common, unless expressly declared in the grant or devise to be otherwise.”).
 Ogilvie, 582 P.2d at 220 (citing 4 G. Thompson, Real Property § 1779 (1961)).
 Idaho Code § 15-6-401.
 See id.
 The interest of a deceased joint tenant is commonly cleared via an Affidavit of Survivorship executed by the remaining joint tenant or tenants (and to which the decedent’s death certificate is attached) and recorded in the records of the county in which the real property is situated. Although this specific process is not codified in Idaho, other provisions of the Code to permit property passing outside of probate via affidavit. See e.g., Idaho Code § 49-514 (accepting an affidavit setting forth the fact of survivorship to transfer title to a motor vehicle); Idaho Code § 15-6-402 (requiring the use of an affidavit to terminate the community property right of survivorship in real property). Further, certain states, like Wyoming, have codified the use of a Survivor’s Affidavit. See Wyo. Stat. 2-9-103.
 An interesting question not taken up in this articles is the potential differing treatment that may result if a married couple elects to take property as joint tenants with right of survivorship rather than as husband and wife as community property with right of survivorship, as it is established law that a joint tenancy between spouses renders each spouse’s interest as their separate property. See Cooke’s Estate, 524 P.2d at 186 (“If a true joint tenancy exists, created according to statute, each spouse owns his or her respective interest as separate property.”).
 Ogilvie, 582 P.2d at 220(citing I.C. § 55-104). See also I.C. § 6-501 (“When several cotenants hold and are in possession of real property as parceners, joint tenants or tenants in common, in which one (1) or more of them have an estate of inheritance, or for life or lives, or for years, an action may be brought by one (1) or more of such persons for a partition thereof, according to the respective rights of the persons interested therein, and for a sale of such property, or a part thereof, if it appears that a partition cannot be made without great prejudice to the owners.”). The joint tenancy is also widely accepted in the personal property context. See e.g., I.C. § 30-23-202 (“Joint tenancy, tenancy in common, tenancy by the entireties, joint property, common property, or part ownership does not by itself establish a partnership, even if the co-owners share profits made by the use of the property.”).
 See id. (adjudicating the validity of a joint tenancy between mother and son, who are of course not married to one another); see also Jemmett v. McDonald, 32 P.3d 669, 671 (Idaho 2001) (ruling on other grounds but addressing claims regarding the validity of a joint tenancy where joint tenants where mother and daughter (obviously unmarried) without calling the same into question).
 Jemmett, 32 P.3d at 671 n. 1.
 A practitioner’s tip here is to ensure that the full “as joint tenants with right of survivorship” language is used in a deed creating such an interest.
 Idaho Code § 15-6-107 (defining a “nonprobate transfer” as “a valid transfer effective at death …”).
 See Idaho Code § 15-1-201 (providing general definitions).
 Ogilvie, 582 P.2d at 222 (Bakes, J., concurring in part and dissenting in part).
 531 P.2d 1167, 1169 (Idaho 1975).
 See note 10 supra.
 Brown v. Yacht Club of Coeur d’Alene, Ltc., 722 P.2d 1062, 1065 (Idaho App. 1986).
 Id. (internal quotations, brackets and citations omitted).
 See note 10 supra.
 See note 19 supra.