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.

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.

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.

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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.

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References

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