United States: Owning Property Jointly At Death: What Happens?

Published in the Portsmouth Herald (10/27/2019)

How many of us have a joint bank account, either with a spouse, child or parent? Similarly, when we make the plunge and buy a house or condo, quite often we purchase the real estate jointly with someone else. Is this a good idea? What happens to jointly owned property at death? Do the provisions in a will or revocable trust prevail?

If property is owned as “tenants in common” (the most common form of joint ownership), then a co-owner has the right to sell his or her interest to anyone, without the consent of the co-owner. There is also some risk because the property may be subject to the claims of the co-owner’s creditors. When a co-owner dies, his/her share of the property will pass according to his/her will (or other testamentary document such as a trust). If an owner dies without a will or trust, then the property passes under the intestacy laws of the state (to prescribed relatives, whether or not that was desired). The other co-owner continues to own his or her share.

As a practical matter, consider this scenario. Alex, Ben and Charlie buy a beach house together as tenants in common. This works fine for a few years, but then Alex starts experiencing financial difficulties and wants out. He wants to sell the beach house, but Ben and Charlie don’t. He asks them to buy his share, but they don’t have money to do that. Alex tries to find a buyer, but can’t find anyone who wants to co-own the house with Ben and Charlie. He’s stuck. Meanwhile, Ben dies unexpectedly and it takes over a year for his estate to get settled, and now Ben’s ownership transfers to his elderly mother. Now Alex, Charlie and Ben’s mother are co-owners. As you can see, joint ownership can be tricky and may lead to unintended consequences.

Consider another scenario. Your elderly father can’t manage his own affairs well any longer, and unbeknownst to you, has your sister Sue added to his bank account that is a “payable on death” account or is held jointly with rights of survivorship so she can pay your father’s bills for him. With either designation, when a co-owner dies, the survivor inherits. Whoops! Even if your father had a will or a trust that said you were supposed to inherit equally with your sister, Sue will automatically own all assets in these types of accounts, superseding any provision in your father’s will or trust. The same is true if someone owns property as joint tenants or as tenants by the entirety: in this type of joint ownership, the survivor inherits.

While this can be an effective method of transferring property after death, there are often unintended consequences. Some disadvantages to owning property jointly in this manner include:

Higher income taxes. Usually property transferred at death gets a “stepped-up basis,” which means heirs can sell it without capital gains tax implications. This is a benefit most often with real estate and investments (e.g., stock ownership) that have appreciated significantly since purchase. However, when property or a bank account is owned as joint tenants, a joint owner’s share of the property does not get the stepped-up basis. This means any appreciation in the joint owners’ share of the asset between the time the joint owner is added and the date of death will be subject to capital gains tax when sold.

As an example, let’s compare what happens if your father bought his house in the 1980s for $305,000 and put your name on the deed as a joint tenant. When he died in 2019, the waterfront house was now valued at $2,153,200. If you were on the title with your father as joint tenants, you know own house, outright. Great! But if you want to sell the house now, you will be considered to have the same cost basis ($305,000) and will not benefit from the step up in basis. You are likely to have to pay capital gains tax on the gain: $1,848,200 will be subject to capital gains tax (which, depending on your tax bracket, may be as high as 20%).

In contrast, if you were able to inherit the house after your father’s death and get the stepped up basis, your basis in the house would be considered to be $2,153,200. Much better, particularly when you live in a state such as New Hampshire, which does not impose any estate tax at death.

Potentially higher gift and estate taxes. Adding someone’s name to the title of an asset (such as a house) is considered a taxable gift. If the gift’s value exceeds $15,000 (in 2019), a federal gift tax return should be filed. As above, the property transferred will not be eligible for a stepped-up basis at death. The property retained by the original owner remains in the original owner’s estate.

So, while co-ownership of property is common, it pays to pay attention to the details. Understanding certain forms of joint ownership will prevail over the terms of a will or trust will help insure you properly title assets or place them in a trust.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

In association with
Related Topics
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions