Jointly owned property goes through probate when it’s held as tenancy in common. It skips probate when it’s held as joint tenancy with right of survivorship or as tenancy by the entirety, because the surviving owner takes the deceased owner’s share automatically by operation of law. The deciding factor is how the title is worded, not simply whether more than one name appears on the deed or account.
The Three Forms of Joint Ownership
Two of the common forms of co-ownership avoid probate. One does not.
Joint tenancy with right of survivorship (JTWROS). Two or more people own equal shares, and when one dies, that share passes automatically to the survivors. No court order, no waiting, and a will cannot redirect the property elsewhere. The survivor absorbs the deceased owner’s interest at the moment of death. This can apply to real estate, bank accounts, investment accounts, and other titled assets.
Tenancy by the entirety (TBE). This works the same way but is limited to married couples, and roughly half the states plus the District of Columbia recognize it. Both spouses are treated as owning the whole property rather than two halves.
Tenancy in common (TIC). This is the form that lands in probate. Co-owners hold separate shares, which can be unequal, and there is no right of survivorship. When one tenant in common dies, that share becomes part of their estate and passes under their will or, if there is no will, under the state’s default inheritance rules. The surviving co-owners get nothing automatically.
The practical difference is large. Two siblings who own a cabin as joint tenants with right of survivorship can transfer the property with a death certificate and a recorded affidavit. The same two siblings who own that cabin as tenants in common will need a probate proceeding to transfer the deceased sibling’s share.
If your deed or account paperwork doesn’t make the form clear, that’s worth sorting out now rather than after a death. Look for the exact phrase “with right of survivorship” or “as tenants by the entirety.” Silence on survivorship is not the same as having it.
A Wrinkle for Community Property States
Nine states use a community property system in which most assets acquired during marriage are owned equally by both spouses. In those states, married couples can title property as “community property with right of survivorship,” which avoids probate the same way JTWROS does. Community property that does not carry the survivorship designation will go through probate when the first spouse dies. The label on the title controls.
Joint Accounts and Vehicles, Not Just Real Estate
People tend to picture a house when they think about joint ownership, but the same rules reach bank accounts, brokerage accounts, and vehicles.
Most joint bank accounts are set up with rights of survivorship, so the surviving account holder gets the funds immediately without any court process.1Consumer Financial Protection Bureau. What Happens if I Have a Joint Bank Account With Someone Who Died? Some accounts, however, are structured as tenants in common, in which case the deceased owner’s share passes through their estate. The account agreement controls which type it is. Call the bank if you’re not sure; this is the kind of detail that gets missed until someone dies and the survivor finds the money frozen.
Vehicle titles have their own quirks. How the names appear matters: names connected by “or” generally allow either owner to sell or transfer independently and typically imply survivorship rights, while names connected by “and” may require both signatures. Rules vary by state, so check your title and your state’s motor vehicle department.
When Survivorship Property Still Ends Up in Probate
The survivorship rules are reliable, but a handful of situations can pull even JTWROS or TBE property into probate.
Defective Titling
If the deed or account paperwork doesn’t clearly say “with right of survivorship” or use equivalent language, a court may default to treating the ownership as tenancy in common. This happens more often than you’d expect. A handwritten deed, a form filled out without legal advice, or a title company’s clerical error can all leave the survivorship language ambiguous, and when that happens, the deceased owner’s share goes through probate.
Simultaneous Death
If all joint owners die in the same event and no one can establish who survived whom, the right of survivorship breaks down. Most states have adopted some version of the Uniform Simultaneous Death Act, which generally requires a joint tenant to survive by at least 120 hours (five days) to inherit through survivorship. If neither owner clears that margin, each owner’s share is treated as part of their own estate and goes through probate separately.
Unilateral Severance
In most states, any joint tenant can sever the joint tenancy on their own, without the other owner’s knowledge or consent, by recording a deed that converts their interest to a tenancy in common. Once severed, the right of survivorship disappears for that share. If a co-owner secretly severs the joint tenancy before dying, their share goes through probate rather than passing to you automatically.
Challenges to the Ownership’s Validity
Family members, creditors, or other interested parties may challenge whether the joint ownership was legitimately created. Common arguments include undue influence (an elderly person pressured into adding someone to the deed), lack of mental capacity, and fraud. If a court finds the joint tenancy was invalid, the property can be reclassified and routed through probate.
What the Surviving Owner Actually Has to Do
Even when JTWROS or TBE property skips probate, the survivor still has to update the legal records. Ownership transfers automatically as a matter of law, but title records don’t update themselves.
For real estate, the process typically runs three steps:
- Obtain a certified death certificate. You’ll need at least one certified copy, which usually costs $15 to $25 from the vital records office, though fees vary by state.
- Prepare and notarize an affidavit of survivorship. This document identifies the deceased co-owner, states the date and place of death, gives the property’s legal description, and asserts your right to full ownership as the surviving joint tenant. Notary fees generally range from a few dollars to about $15.
- Record the affidavit with the county recorder. File it along with the certified death certificate at the county recorder’s office where the property is located. Recording fees generally run between $10 and $100 or so.
Some jurisdictions also require recording a new deed naming the surviving owner as sole owner. Even where it isn’t strictly required, doing it anyway can prevent title problems later when you sell or refinance.
For bank and investment accounts, the process is simpler. The surviving owner typically presents a certified death certificate to the financial institution, which updates the account records, often within a few business days.
An afternoon of paperwork and a few hundred dollars in fees is a very different thing from the months and thousands of dollars a full probate can cost. That difference is the whole point of titling property for survivorship in the first place, and the reason it’s worth checking your own deeds and account agreements now, while you can still fix anything that’s been titled the wrong way.