When you co-own property, the way you hold title controls what occurs at death-often more than your will. This article strolls you through the legal and practical distinctions in between tenants in common (TIC) and joint occupancy with right of survivorship (JTWROS), what to expect when one owner passes away, and how to prepare with self-confidence. Contact us by either using the online type or calling us straight at 414-253-8500 for legal support.
Why Title Matters More Than Many People Realize
Realty does not immediately follow the instructions in a will. Instead, the deed's vesting language-how the owners are listed-can send out the residential or commercial property on very different paths at death. In other words:
- Joint Tenancy (JTWROS): the departed owner's share usually passes immediately to the making it through joint owner(s).
- Tenants in Common (TIC): the departed owner's share does not pass to co-owners instantly; it normally passes under the will or by intestacy and might need probate.
Key point: Your deed can bypass your will when it pertains to who receives your property.
If you're new to probate and non-probate transfers, you may discover this introduction valuable: What Is Probate and How Can It Be Avoided.
The Legal Definitions-Plain English
Tenants in Common (TIC)
- Each owner holds a separate, divisible interest (which can be equivalent or unequal).
- An owner can offer, present, or bestow their share.
- Upon death, the owner's share goes to their heirs/beneficiaries, not instantly to the other co-owners.
Joint Tenancy with Right of Survivorship (JTWROS)
- Co-owners hold one unified interest with equivalent shares.
- When one owner passes away, their interest disappears into the survivors' interests by operation of law.
- The residential or commercial property typically avoids probate for that departed owner.
Note: Some jurisdictions also acknowledge tenancy by the entirety for married partners. Its survivorship function is comparable to joint occupancy, but it's an unique kind of ownership with creditor and transfer subtleties. If you're uncertain how your deed is titled, have a lawyer review the specific language on your tape-recorded deed.
Tenants in Common vs. Joint Tenancy: What Happens When One Owner Dies
If the deceased was a Joint Tenant (JTWROS)
1. Automatic transfer to surviving owner(s). The deceased owner's interest passes by survivorship, not by will.
2. Paperwork is still needed. Although probate is typically avoided, you'll usually require to:
- Record an affidavit of survivorship (or comparable type) and
- Record a certified death certificate with the county land records.
3. Title is upgraded to reveal the surviving owner(s) as the existing owner(s).
Practical notes:
- Mortgages and liens: Survivorship does not eliminate valid liens. The loan and any tape-recorded encumbrances remain connected to the residential or commercial property.
- Residential or commercial property taxes and insurance coverage: Notify the tax authority and insurer immediately to keep billing and protection present.
- Simultaneous death or typical catastrophe: If owners pass away close in time and the deed doesn't address order of death, default rules can apply. This can complicate who receives the residential or commercial property.
- Unintended disinheritance: JTWROS can inadvertently disinherit kids from a prior relationship if a partner or partner outlives you and then leaves the residential or commercial property somewhere else. If that's an issue, a trust can offer guardrails. For a much deeper dive, see: Is It Better to Use Joint Ownership or a Trust to Give a Home?.
When to seek legal aid quickly: If another joint tenant just recently changed title (e.g., tape-recorded a deed severing the joint tenancy) or if there are lender problems, get suggestions quickly to avoid losing survivorship rights or to navigate claims.
If the deceased was a Renter in Common (TIC)
What normally happens:
1. No automatic survivorship. The decedent's share comes from their estate.
2. Will or intestacy controls. The share passes under the will, or if there's no will, under intestacy (the default inheritance rules).
3. Probate may be required. Real estate is frequently a probate property unless other planning remains in location (for example, the share is held in a trust).
The typical steps:
- The personal agent (executor) might require to:
- Open an estate and obtain authority (letters).
- Manage or offer the decedent's fractional interest.
- Distribute the share (or sale profits) to beneficiaries.
- Record an individual representative's deed if a transfer takes place.
Co-owner dynamics:
- Remaining TIC owners keep their shares. They do not immediately receive the decedent's part.
- If the decedent's beneficiaries do not want to co-own, they (or the administrator) might ask for a sale or, as a last hope, pursue a partition action to require a sale if no agreement can be reached.
- Co-owners need to think about a co-ownership arrangement to set guidelines for expenditures, buyouts, and sale procedures while an estate is being settled.
Advantages and disadvantages at a Glimpse (Narrative)
Joint Tenancy (JTWROS) Strengths
- Faster shift at death, typically no probate for the residential or commercial property.
- Simpler for spouses/partners who desire the survivor to own the residential or commercial property outright.
- May minimize administrative delays if the survivor needs to refinance or offer.
Joint Tenancy (JTWROS) Risks
- Can disinherit children or intended recipients if the survivor later alters their own estate strategy.
- Severance threat: A joint tenant can often unilaterally sever the joint occupancy, transforming it to TIC-undercutting survivorship.
- Creditor exposure: A lender of one joint renter might make complex refinancing or title.
Tenants in Common (TIC) Strengths
- Control and flexibility: You can leave your share to your selected recipients.
- Unequal ownership enabled, matching contributions or investment percentages.
- Better fit for non-spouse co-investors and blended-family planning.
Tenants in Common (TIC) Risks
- Probate direct exposure: The share might need probate unless it's currently in a trust or transferred through a non-probate approach.
- Management friction: Disagreements over repair work, rent, or sale are more typical without a co-ownership agreement.
- Liquidity difficulties: Selling a fractional interest can be difficult and might require court involvement.
What Your Will, Trust, and Beneficiary Choices Can-and Can't-Do
- A will controls probate properties (like a TIC share that isn't otherwise prepared). If you do not have one, consider our summary of Wills.
- A revocable living trust can hold title to your residential or commercial property and prevent probate for that asset if effectively moneyed. It likewise permits in-depth guidelines for who utilizes the residential or commercial property and when after your death.
- Beneficiary designations don't normally govern property, but they matter for savings account and retirement funds that may be needed to pay bring costs or buy out co-owners. See our page on Beneficiary Designations.
- Deed-based tools (e.g., transfer-on-death deeds, where offered) can move genuine residential or commercial property outside probate while protecting your control during life. The specific rules are jurisdiction-specific and should be carried out specifically.
Common Post-Death Scenarios-And How Title Drives the Outcome
1. Married couple on the home in JTWROS; one spouse passes away: The survivor records the affidavit and death certificate. Title vests completely in the survivor. Later estate distribution occurs per the survivor's plan-not the decedent's-unless other planning was done.
2. Adult brother or sisters own a rental as TIC; one brother or sister passes away: The decedent's will leaves their share to their kids. An estate is opened, the administrator manages the share, and the heirs either keep co-owning or negotiate a buyout/sale.
3. Unmarried partners in JTWROS however later on separate: One records a deed severing the joint tenancy (if allowed), converting to TIC. If one dies after severance, survivorship is gone; the deceased's share goes to their estate.
4. One owner has substantial personal debts: Whether JTWROS or TIC, recorded liens can cloud title or follow sale proceeds. Survivorship does not eliminate valid encumbrances. Planning may consist of refinancing, pay-downs, or holding the residential or commercial property in a trust to manage circulations.
Step-By-Step: What Survivors Should Do Next
If the residential or commercial property was held as Joint Tenants (JTWROS)
1. Order numerous qualified death certificates. You'll typically require a minimum of 2-3.
2. Record an affidavit of survivorship plus a death certificate in the county's land records to show the survivor's ownership of record.
3. Notify the lender, insurer, and tax authority. Keep payments existing; request billing updates and confirm coverage.
4. Update the estate plan of the survivor. Now that title is entirely in the survivor's name, validate who ultimately acquires. For wider context on entitling and deeds, see our overview on titling and deeds.
5. Check for liens or home equity lines. Survivorship won't remove recorded encumbrances.
If the residential or commercial property was held as Tenants in Common (TIC)
1. Confirm the personal representative. If there's a will, the chosen agent petitions to be appointed; if not, an interested successor can petition under intestacy.
2. Open the estate (if required) so the agent can act.
3. Maintain the residential or commercial property. Pay taxes, insurance, HOA dues, and necessary repair work; track expenditures for later accounting.
4. Decide whether to keep, buy out, or offer. Co-owners can buy the decedent's share from the estate, hold the residential or commercial property together, or list it for sale. If agreement stops working, a partition action may be the last resort.
5. Transfer title or profits. The representative signs an individual representative's deed, or disperses sale proceeds to beneficiaries per the will or intestacy.
Practical tip: Keep careful records of carrying costs and repairs throughout estate administration-these may be reimbursable and can matter for tax basis.
Taxes at Death: Basis, Gains, and Timing
- Income tax basis: A decedent's share normally gets a step-up (or step-down) in basis to the fair market worth at death.
- In JTWROS, the step-up typically applies to the departed owner's part.
- In TIC, the step-up uses to the decedent's fractional interest that goes through the estate.
Capital gains: If the survivor later on sells, gains are computed from the changed basis (consisting of any step-up) minus offering costs.
Estate or estate tax: Thresholds and rules are jurisdiction-specific and change in time. Get customized guidance before offering or retitling.
Residential or commercial property tax reassessment: Some jurisdictions reassess on transfer; others provide exclusions for particular transfers. Verify locally before you act.
For broader preparation beyond probate, examine our comparison of revocable living trusts vs. wills.
Reading Your Deed: How to Know What You Have
Search for exact vesting language on the most current recorded deed:
- "As joint renters", sometimes clearly "with right of survivorship."
- "As occupants in common."
- "Couple as tenants by the whole" (where acknowledged).
If the deed is silent, default statutes might apply-and silence can trigger disputes. When in doubt, order a title search and have an attorney review. If you need to change how it's held, that typically requires tape-recording a new deed (and, if appropriate, loan provider authorization).
Changing Course: Can You Switch Between TIC and JTWROS?
- From TIC to JTWROS: Co-owners can sign and tape-record a brand-new deed that expressly develops survivorship rights. Title insurance providers frequently choose a fresh instrument to avoid uncertainty.
- From JTWROS to TIC: In numerous locations, one owner can sever the joint tenancy-intentionally or accidentally-by communicating their interest (even to themselves) into TIC kind. This can defeat survivorship.
- After a death: Once a joint renter passes away, survivorship relates back to the initial deed. You can't "undo" survivorship retroactively; you 'd need different planning (e.g., trusts) in advance.
For owners examining deed-based choices to avoid probate, see our introduction on transferring real residential or commercial property without probate and our conversation of life estate deeds.
Planning Solutions That Balance Control and Simplicity
- Revocable living trust: Place the residential or commercial property in a trust to avoid probate, keep control during life, and direct who benefits after death with guardrails (e.g., kids from previous relationships, use rights, sale timing).
- Co-ownership arrangement: For TIC owners, set composed rules for expenditures, repairs, buyouts, sale approvals, and dispute resolution.
- Transfer-on-death (TOD) deed (where available): Lets you maintain full control during life while calling a recipient for the residential or commercial property at death. Execution and recording details are vital.
- Insurance review: Ensure house owner's coverage and any landlord/rental riders match truth. Update named insureds after death.
- Liquidity preparation: Keep money or a designated account to cover taxes, insurance coverage, and urgent repair work while documents process.
Warning That Require Prompt Legal Advice
- Ambiguous or conflicting deeds (e.g., prior conveyances using various vesting language).
- Unclear marital status or common-law marriage questions sometimes of purchase.
- Recent quitclaim deeds that may have severed a joint occupancy.
- Creditor claims, liens, or HOA offenses complicating transfer or sale.
- Heirs contesting a will or asserting rights that clash with survivorship.
- Out-of-state residential or commercial property or residential or commercial property in several counties requiring collaborated filings.
Document Checklist (Save This)
- Certified death certificate(s)
- Affidavit of survivorship (for JTWROS)
- Letters designating the personal agent (for TIC in probate)
- Personal representative's deed (if the estate communicates)
- Latest recorded deed and title report
- Mortgage statements, residential or commercial property tax expenses, insurance declarations
- HOA/condo statements and laws (if suitable)
- Lien benefit or subordination letters (if required)
- Closing statement if selling
When Joint Tenancy Makes Sense-And When It Doesn't
Often sensible for:
- Couples who desire the survivor to own the home instantly, with minimal bureaucracy.
- Co-owners who are aligned on ultimate personality and have actually collaborated estate plans.
Often not perfect for:
- Blended households where you wish to secure children from prior relationships.
- Investment partners who require clear exit/buyout mechanics.
- Situations with unequal contributions or various time horizons.
If you're not sure which course fits, a brief technique session with an experienced genuine estate and estate preparation attorney can clarify trade-offs and established a future-proof strategy.
Contact an Attorney for Tenants in Common vs. Joint Tenancy
Have concerns about Tenants in Common vs. Joint Tenancy or what takes place when one owner dies? We can help you comprehend your deed, complete the necessary filings, and construct a plan that balances control, survivorship, and beneficiary defenses. Contact Heritage Law Office by utilizing our online form or calling 414-253-8500 to speak with an attorney about your circumstance.
1. What is the primary distinction in between Tenants in Common vs. Joint Tenancy when one owner passes away?
In joint tenancy with right of survivorship (JTWROS), the departed owner's interest generally transfers instantly to the enduring owner(s) by operation of law. In occupants in typical (TIC), there is no survivorship: the deceased owner's share passes under their will or by intestacy and might need probate.
2. Does joint tenancy constantly prevent probate for the residential or commercial property?
Often, yes-for that deceased owner's interest-because the transfer occurs by survivorship, not through the estate. However, documentation is still needed, such as tape-recording an affidavit of survivorship and a death certificate. Existing mortgages or liens stay; survivorship does not erase encumbrances.
3. Can a joint occupancy be altered to renters in typical without everyone agreeing?
In many jurisdictions, one joint renter can sever the joint tenancy unilaterally (for instance, by communicating their interest to themselves as TIC), which removes survivorship moving forward. The specific approach and effect depend upon regional law and the deed language, so it's prudent to seek advice from a knowledgeable lawyer before making modifications.
4. Do taxes work differently for JTWROS vs. TIC when an owner passes away?
Generally, the deceased owner's fractional interest receives a step-up (or step-down) in earnings tax basis to reasonable market price at death. In JTWROS, the step-up usually applies to the decedent's portion; in TIC, it uses to the decedent's fractional share that travels through the estate. Capital gains on a later sale are determined from the changed basis, less selling costs.
5. What files should survivors collect after a co-owner passes away?
At minimum: certified death certificates, the most recent deed, any mortgage declarations, residential or commercial property tax and insurance files, and-depending on title-either an affidavit of survivorship (JTWROS) or letters of authority and a personal agent's deed (TIC/probate). Keeping arranged records helps with title updates, refinancing, or a future sale.
