What happens on my death to property held jointly with another person?

The most common form of joint tenancy is “joint tenancy with rights of survivorship.” This is a form of property ownership frequently held between spouses, although it also can be held between parent and child, brother and sister, and between business partners, for example.

On the death of the first joint tenant, the property immediately passes to the surviving joint tenants in equal shares without having to go through probate. This also means that the property is not controlled by the terms of a will and could be inappropriate, for example, for an individual who owns property jointly with a spouse from a second marriage but wishes to leave the property to children from the first marriage.

A variant is “tenancy by the entirety” which is available only for a married couple. On the death of the first “tenant,” the property similarly automatically passes to the survivor outside the terms of the decedent’s will and outside the probate process. However, unlike property held as JTWROS, which can be severed through the unilateral action of one of the joint tenants, property held as TBE can only be severed with the consent of both spouses.

Yet another form of joint ownership is tenancy in common, which can involve more than two people, each of whom is free to transfer their respective shares of the property to other individuals without permission of the other tenants. However, there are no survivorship rights; on the death of one holder, his or her respective share of the entire property is included an asset in the holder’s gross estate.

2021 Digital Almanac

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