When two or more people own property together — a home, a bank account, an investment property — the type of co-ownership they have determines what happens to each person's share when they die. The two most common forms are joint tenancy and tenancy in common, and they work very differently.
Joint Tenancy With Right of Survivorship
Joint tenancy is a form of co-ownership with a built-in "right of survivorship": when one joint tenant dies, their share automatically passes to the surviving joint tenant(s). This transfer happens by operation of law — outside of the probate process — regardless of what the deceased's will says.
How the transfer works
When a joint tenant dies, the surviving joint tenant(s) record an affidavit of survivorship at the county recorder's office along with a certified copy of the death certificate. This clears the title without any court involvement.
Who uses joint tenancy
Joint tenancy is most commonly used by married couples for their primary home — it's a simple, automatic way to ensure the surviving spouse takes ownership without probate. It's also commonly used for joint bank accounts and investment accounts ("joint tenants with right of survivorship" or "JTWROS").
Limitations
- You cannot leave your share to anyone other than the surviving joint tenant(s) — the right of survivorship overrides your will
- Joint tenancy only avoids probate for the asset during the lifetime of the survivors — when the last owner dies, the property must still go through probate
- Any joint tenant can unilaterally sever the joint tenancy (converting it to tenancy in common) without the other owner's consent
- If one joint tenant has creditors or goes through bankruptcy, their interest in the joint tenancy may be at risk
Tenancy in Common
Tenancy in common is co-ownership without a right of survivorship. Each owner holds a distinct, undivided share of the property — which can be equal (50/50) or unequal (one person owns 70%, another owns 30%). Each co-owner's share passes according to their will (or through intestacy) when they die.
Who uses tenancy in common
Tenancy in common is commonly used for investment properties and situations where co-owners are not in a spousal or survivorship relationship — business partners, investor groups, siblings who inherit property together, or unmarried partners who each want their share to go to their own heirs rather than the co-owner.
Limitations
- Each owner's share goes through probate at their death
- Heirs may end up co-owning property with strangers or people they don't know
- Any co-owner can force a sale of the property through a "partition action" in court
- Less simple for estate planning than joint tenancy when the goal is automatic transfer to a partner
Community Property (Nine States)
In community property states (California, Texas, Arizona, Nevada, Washington, Idaho, New Mexico, Louisiana, and Wisconsin — plus Alaska by election), married couples have a third option: community property. Each spouse owns half of property acquired during marriage; at death, each spouse can will away their own half. Community property with right of survivorship combines community property's tax advantage (double step-up in basis) with the probate-avoidance feature of joint tenancy.
For Most Families: Use a Trust
For comprehensive, flexible estate planning that avoids probate and gives you full control over what happens to property, a revocable living trust is typically superior to either joint tenancy or tenancy in common. The trust can own all your property, directs distribution at your death exactly as you specify, avoids probate, and can be changed at any time during your lifetime.