What happens to jointly owned property when one owner dies depends almost entirely on one thing: how the deed is titled. If the deed carries a right of survivorship, the surviving owner becomes the sole owner the moment the other owner dies, with no court involvement. If the deed says tenancy in common, or says nothing at all, the deceased owner’s share becomes part of their estate and passes through probate. That single line on the deed decides whether the transition takes a few forms and a recording fee or months of court supervision.
The Three Forms of Co-Ownership and What Each One Does at Death
Almost every jointly held home in the United States is held in one of three ways, and each handles death differently.
Joint Tenancy With Right of Survivorship
Joint tenancy with right of survivorship (JTWROS) is the most common arrangement used to keep property out of probate. Each owner holds an equal share, and when one dies the share passes directly to the surviving owner by operation of law. A will has no effect on joint tenancy property. Even a will that specifically leaves “my half of the house” to someone else is overridden by the survivorship right built into the deed.
One thing to know: an owner who sells or transfers their share to a third party during their lifetime can break the joint tenancy without the other owner’s consent, converting it into a tenancy in common and wiping out the survivorship right.
Tenancy by the Entirety
Tenancy by the entirety is available only to married couples and is recognized in roughly half the states. It works like joint tenancy — the surviving spouse automatically inherits — with an added benefit while both spouses are alive: because the law treats both spouses as a single owner, a creditor with a judgment against only one spouse generally cannot force a sale or lien the property. That protection disappears for joint debts and, in some states, for federal tax obligations.
Tenancy in Common
Tenancy in common is the default in most states when the deed doesn’t specify. Owners can hold unequal shares, and each share is independently transferable. There is no survivorship right. When a tenant in common dies, their share passes through their estate — by their will if they had one, by state intestacy rules if they didn’t. The surviving co-owner has no automatic claim to it and may end up sharing the property with the deceased owner’s children, ex-spouse, or someone they’ve never met.
What the Surviving Owner Does When Transfer Is Automatic
With joint tenancy or tenancy by the entirety, you own the whole property the moment your co-owner dies. No court order, no probate filing, no executor. But the public record still shows two names, so you need to clear the title.
You will need a certified copy of the death certificate, which you can get from the vital records office in the state where the death occurred. Photocopies are generally not accepted.1USAGov. How to Get a Certified Copy of a Death Certificate File the death certificate along with an affidavit of survivorship (sometimes called an affidavit of heirship, depending on the jurisdiction) at the county recorder’s office where the property is located. The affidavit identifies the property, states that the co-owner has died, and asks that title be updated to single ownership.
Recording fees vary by county but generally run between $10 and $150, often charged per page. Many people handle the filing without a lawyer, though paying an attorney to draft the affidavit adds some certainty that it will be accepted on the first submission.
What Happens When the Share Goes Through Probate Instead
Tenancy in common is where things slow down. The deceased owner’s share becomes an asset of the probate estate. If there’s a will, the share goes where the will directs. If there’s no will, state intestacy laws decide, generally prioritizing spouse, then children, then parents, then siblings.
Probate involves court supervision to validate the will, inventory assets, pay the deceased’s debts, and distribute what’s left. Simple estates can wrap in a few months; contested ones or estates with complex assets can run well over a year. During that time, the surviving co-owner cannot sell the property without the estate’s cooperation, because they don’t own the whole thing. They also cannot force the estate to sell quickly.
Creditors get a window to file claims against the estate, and those claims can eat into the value of the property share before any beneficiary sees anything. You don’t inherit the deceased’s debts personally, but you may find yourself co-owning the house with people who have very different plans for it than you do.
Bills That Keep Running After a Co-Owner Dies
Death does not pause the obligations attached to the property. Several of them follow the house itself, no matter how ownership has transferred or whether the deed has been updated yet.
The Mortgage
The mortgage stays with the property. If payments stop, the lender can foreclose. The lender cannot, however, call the entire loan due simply because an owner died. The Garn-St. Germain Act bars enforcement of a due-on-sale clause when property transfers to a surviving joint tenant, a spouse, or a relative after the borrower’s death.2Office of the Law Revision Counsel. 12 USC 1701j-3 – Preemption of Due-on-Sale Prohibitions You can keep paying on the existing loan terms without refinancing.
Reverse Mortgages Are Different
A reverse mortgage becomes due and payable after the last borrower (or eligible non-borrowing spouse) dies. Heirs receive a “due and payable” notice and typically have 30 days to decide whether to buy the home, sell it, or turn it over to the lender. That window can sometimes be extended up to six months to arrange a sale or secure financing.3Consumer Financial Protection Bureau. With a Reverse Mortgage Loan, Can My Heirs Keep or Sell My Home After I Die?
Property Taxes, Insurance, and HOA Dues
Property taxes keep accruing and must be paid to avoid liens or tax foreclosure. Make sure the bills are being sent somewhere you’ll actually see them, because mail may still be routing to the deceased owner. Update the homeowner’s insurance promptly to reflect the change in ownership and occupancy; a lapse can leave the property unprotected and may violate the mortgage terms.
HOA dues and assessments run with the land. The estate is responsible for any unpaid dues during the transition, but once a new owner takes title, ongoing assessments become theirs. HOAs can lien the property for unpaid dues, so staying current avoids complications at any future closing.
The Tax Break Most Survivors Don’t Know About
Inheriting a share of property comes with an advantage worth understanding before you ever consider selling: the stepped-up basis. When you inherit property, your tax basis in the inherited portion resets to the fair market value on the date of death, not the original purchase price.4Office of the Law Revision Counsel. 26 USC 1014 – Basis of Property Acquired From a Decedent Capital gains tax on a later sale is figured on the difference between the sale price and your basis, so the step-up can cut the tax bill substantially.
For joint tenants, only the deceased owner’s half gets the step-up. Your original half keeps its old basis. Say you and a sibling bought a house for $200,000 as joint tenants with right of survivorship, and your sibling dies when the house is worth $500,000. Your new total basis is $350,000: your original $100,000 for your half, plus $250,000 for the inherited half at date-of-death value. Sell for $500,000 and you owe capital gains on $150,000 rather than $300,000.5Internal Revenue Service. Gifts and Inheritances
Married couples in community property states get a better deal. When one spouse dies, the entire property — including the surviving spouse’s half — is stepped up to fair market value. This “double step-up” can eliminate capital gains entirely if the survivor sells soon after.6Internal Revenue Service. Publication 555 (12/2024), Community Property It’s one reason estate planners in community property states sometimes advise against titling property as joint tenancy, which gets only a half step-up.
A Note on Medicaid
If the deceased co-owner received Medicaid, particularly for long-term care, the state may try to recover those costs. Federal law requires every state to run an estate recovery program, and some states define “estate” broadly enough to include property that passed outside probate, including joint tenancy property. In those states, Medicaid can pursue a claim against the deceased person’s former interest even though it transferred automatically to you.
Recovery is typically deferred when there’s a surviving spouse, a child under 21, or a disabled dependent, and states grant hardship waivers in certain cases. Rules vary significantly by state, so if this applies to your situation, talk to an elder law attorney where the property sits.
When the Surviving Owner and the Heirs Don’t Agree
The hardest situations arise when the deceased owner’s share passes to someone who sees the property differently than you do. One of you wants to sell; the other wants to keep it. One lives there; the other wants cash. This is most common with tenancy in common, where the share may land with multiple heirs who never chose to own property together.
Start with negotiation. A buyout at fair market value is almost always cheaper and faster than litigation. If that fails, any co-owner can file a partition action, asking the court either to physically divide the property (rare, and really only practical for large parcels of land) or to order a sale and divide the proceeds by ownership share.
Courts can adjust how proceeds split based on who paid the mortgage, taxes, maintenance, and insurance, and based on who had exclusive use of the property. Partition sales also tend to bring less than a voluntary sale on the open market, which is why a negotiated solution almost always leaves everyone better off financially.
Check the Deed Before You Need To
Most of the painful scenarios above are preventable. Pull your deed and confirm what form of ownership you actually have. People are often surprised to find the deed says something different from what they assumed at closing. If it says “tenants in common” or doesn’t specify, there’s no survivorship right and the property will go through probate when a co-owner dies.
Unmarried co-owners who want automatic transfer should make sure the deed explicitly states “joint tenants with right of survivorship.” Married couples in states that recognize tenancy by the entirety get the added benefit of creditor protection. In community property states, weigh the double step-up in basis against the protections of other ownership forms.
If you want to keep tenancy in common but control where your share goes, a will is essential; without one, intestacy decides. A living trust is another option that avoids probate while letting you set the terms of inheritance. Any change in ownership structure is worth running past an attorney, because the wrong move can trigger a property tax reassessment or an unintended gift tax event.