Tenants in Common in a Will

By Beverly Bird

When title to property -- usually real estate -- is held by tenants in common, each of those tenants owns a portion of the property. The portion is a legal entity rather than a physical one. If you own property as a tenant in common, you have the right to use the entire premises, but you only actually own a percentage of its value. You can’t sell the property without the consent of the other tenant, the person you own the property with. However, you can sell your portion of the ownership, and if you pass away, your portion is an asset of your estate.

When title to property -- usually real estate -- is held by tenants in common, each of those tenants owns a portion of the property. The portion is a legal entity rather than a physical one. If you own property as a tenant in common, you have the right to use the entire premises, but you only actually own a percentage of its value. You can’t sell the property without the consent of the other tenant, the person you own the property with. However, you can sell your portion of the ownership, and if you pass away, your portion is an asset of your estate.

Impact of Probate

When a will enters the probate process, the court oversees the transfer of the deceased’s property to whatever beneficiaries he wants to leave it to. In the case of a home owned by the deceased as a tenant in common, his portion of the property's value passes through probate. His will might bequeath his percentage specifically to someone else. If this is the other tenant in common, then that person, usually a spouse, will now own the entire property. If it is not, then whoever inherits the tenant-in-common share merely owns part of a house with someone else.

Protect your loved ones. Start My Estate Plan

Rights of the Estate and Beneficiaries

The executor of the deceased’s will cannot liquidate a tenants-in-common property to pay expenses, debts or cash inheritances for the estate unless the other tenant in common purchases the deceased’s interest or agrees to sell her portion as well. If the tenant-in-common share bequeaths to a certain individual, then he has the same rights that the original tenant in common enjoyed. He has use of the full house, but he cannot sell it without the consent of the other tenant. He can only sell his percentage share.

Disadvantages

The greatest disadvantage to holding title to a property as tenants in common results when the other tenant is not the deceased’s spouse. The person inheriting can end up with an essentially useless asset unless she wants to live with the other tenant in common. She cannot take a mortgage against just her share of the property, and she can only sell her portion of the ownership, presumably to someone who wants to live there. This severely limits any cash value the inheritance might otherwise have had. Even if a spouse inherits the other share, that portion must still pass through probate, and the deceased’s creditors can potentially take liens against it.

Alternatives

Holding title to property as joint tenants with rights of survivorship as opposed to tenants in common allows the deceased’s ownership to pass directly to the other party he owns the property with. His portion would not have to pass through probate and would automatically become the property of his co-owner. Alternately, the deceased can state specifically in his will that his portion of the home should transfer to his co-owner. This will not avoid probate, but it can ensure that the asset is not “wasted,” going to a beneficiary who has no use for it.

Protect your loved ones. Start My Estate Plan
What Happens to Joint Property When Someone Dies Without a Will in Pennsylvania?

References

Related articles

Right to Inherit a Tenancy

A tenancy is a form of concurrent property ownership in which two or more people share interest in the same property. A tenancy may grant a right to inherit another tenant's interests upon death. However, not all tenancies grant an automatic right of inheritance, known as a "right of survivorship."

Difference Between Community Property With Rights of Survivorship Vs. Joint Tenancy

Property held as a joint tenancy and property held as community property with rights of survivorship have many similar characteristics. When a married couple owns property as a joint tenancy or as community property with rights of survivorship, the spouse who outlives the other automatically receives the deceased spouse's property interest. However, the two types of ownership differ regarding how each is taxed upon the death of a spouse.

Do You Have to Partition Undivided Property in a Will?

Partitioning is a judicial process that divides co-owned real estate among its owners. A will can transfer the decedent’s share of co-owned property or it may establish that certain real estate is to be co-owned by certain beneficiaries. In all of these cases, partitioning the property is generally not required. If there is a conflict among the owners about the property's use, however, or if one owner wants unrestricted ownership over a portion of the real estate, the owners may choose to partition the property.

LegalZoom. Legal help is here. Start Here. Wills. Trusts. Attorney help.

Related articles

How to Get Out of Inherited Property Held As Tenants-in-Common

Tenants in common is a type of ownership interest where two or more persons own a piece of property together. Unless a ...

Is Probate Required for a Home Transfer After a Will Was Written?

Probate involves the legal process of transferring the title to property from the deceased’s name into the name ...

Ohio Probate Law Concerning Property Deeds in Multiple Names With No Rights to Survivorship

Frequently, an estate or inheritance involves multiple heirs. If a last will and testament exists, even it may not ...

How to Quitclaim a Jointly Owned Property in Texas

Quitclaim deeds don’t receive a lot of respect in Texas. Texas is a community property state and this compounds ...

Browse by category
Ready to Begin? GET STARTED