Tenancy in Common

What is a tenancy in common? It is the ownership of an asset by two or more persons, who own the asset in undivided interests that may be unequal.  Joint tenancy, on the other hand, involves equal ownership of the undivided interests.

What else is different about tenancy in common? When a tenant in common dies, his or her share of the asset is subject to his or her will or trust, or, if there is no will or trust, to intestate succession.  But when a joint tenant dies, his or her interest in the asset vests in the surviving joint tenant or joint tenants.

2.  A tenancy in common may be subject to probate, but joint tenancies are not subject to probate.

3.  A tenancy in common may involve interests that are not equal:  One co-tenant may own 75 percent of the asset, and the other co-tenant would own 25 percent. 

Does a will or trust have any control over tenancy in common property? Yes.  An interest in a tenancy in common may be given to others through a will or trust. 

How does tenancy in common affect capital gains taxes? Only the interest owned by the deceased co-tenant can be stepped up for capital gains purposes, subject to a limit of $1.3 million for non-spouses, and $4.3 million for spouses.

Advantages of a tenancy in common:

1.The interest in the asset that is owned by the decedent is subject to the decedent's will.
2.  Unequal interests can be owned by the co-tenants.


Disadvantages of a tenancy in common:

1. The interest owned by the decedent may have to be probated.
2.  If the shares are unequal, that fact must be stated in the title to the asset, or the ownership will be presumed under state law to be equal. 

What does tenancy in common look like on a deed?

The grantee of a typical deed in tenancy in common might look like this:

John Smith grants to: Joseph Jones, an undivided one-third interest, and to Robert Johnson, an undivided two-thirds interest, as tenants in common.

If they owned the property equally, the deed would read: Joseph Jones, an undivided one-half interest, and to Robert Johnson, an undivided one-half interest, as tenants in common.

 For more estate planning information:  Sitemap