How should you hold title?
The vesting clause is a single sentence on the deed, and it decides what happens to the property when one of the owners dies. Choose wrong and the survivor may inherit nothing automatically. In most states survivorship is not implied. If the words are not there, it does not happen.
The options, side by side
| Vesting | Who can use it | When one owner dies |
|---|---|---|
| Sole ownership | One person | Passes under the will or by intestacy. Through probate |
| Tenants in common | Any two or more | That owner's share goes to their heirs, not the co-owners. Probate. |
| Joint tenants with right of survivorship | Any two or more | The survivors take the whole property automatically. No probate. |
| Tenancy by the entirety | Married couples only, where recognized | The surviving spouse takes everything automatically, plus creditor protection |
| Community property | Married couples in community property states | The deceased spouse's half passes under their will. Probate. |
| Community property with right of survivorship | Married couples where available | The survivor takes everything, plus a full step-up in basis |
The rule that catches people
Survivorship is not implied
In almost every state, a deed to two people that says nothing more creates a tenancy in common. When one dies, their half goes to their heirs, not to the other owner. Two unmarried partners who assume otherwise can find the deceased partner's family owning half their home.
Tenancy by the entirety
Available to married couples in about half the states. Both spouses own the whole property, neither can transfer alone, and in most states that recognize it a creditor of one spouse cannot reach the property at all. Where it is available it is usually the best choice for a married couple's home. Check your state on the state pages.
Community property with right of survivorship
In community property states. Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington, and Wisconsin. This is usually the best married-couple vesting where it is offered. It avoids probate like a joint tenancy, and it also gives the survivor a full step-up in basis on the entire property, not just the deceased spouse's half. On a long-held home that can be worth six figures in avoided capital gains tax.
When tenants in common is right
- Unequal contributions. One person put in 70% of the purchase price and wants that reflected.
- Business partners or investors who each want to control their own share.
- Blended families, where each owner wants their share to go to their own children rather than to the surviving spouse.
- Anyone who wants to be able to sell or will their share independently.
Adding a co-owner is a gift with tax consequences
Putting someone on your deed transfers a share to them today. They take your original cost basis, not the current value, which can create a large capital gains bill when the property is eventually sold. For an adult child, a transfer-on-death deed usually achieves what people actually want without that cost.
You'll see the options your state allows for your situation, with what each one does at death.
Common questions
Survivorship. Joint tenants own equal shares and the survivor automatically takes the whole property. Tenants in common own separate, possibly unequal shares, and each share passes to that owner's heirs. Joint tenancy avoids probate; tenancy in common does not.
Yes, by recording a new deed from the current owners to themselves in the new vesting. It is a routine transaction, Deedly handles it, but consider the tax and creditor consequences first, especially if you're moving away from tenancy by the entirety.
For that property, yes. The survivor takes it automatically on recording a death certificate and affidavit. But it only works until the last owner dies; at that point the property is in one name and goes through probate unless something else is in place.
Keep reading
Deedly is not a law firm
We provide self-help software and state-specific statutory forms; you make your own decisions about your property. Using Deedly does not create an attorney-client relationship, and nothing here is legal advice. If your situation is complex or contested, talk to a licensed attorney in your state.