Estate Planning and Tenancy in Common

Making the right choice regarding when it comes to titling your property can have a significant impact on your estate. Some property titling options allow owners to avoid probate and protect the property from creditors, while other options provide flexibility for unmarried co-owners but leave the property vulnerable to the probate process.

Many people don’t fully appreciate the different titling options available to them when they buy property, options that can help or hinder their overall estate planning and asset protection efforts. This article covers tenancy in common.

Tenancy in common is form of property ownership that can be used when one owner is not to have rights to the other owner’s descendant’s share of the property. This is a form of ownership common with unmarried co-owners who wish to keep their share of the property separate, and it can also be used by married individuals.

Overview of Tenancy in Common

  • This option used for property owned by two or more persons at the same time.
  • Each person owns a set percentage of the property. The percentages do not need to be equal.
  • A popular option for unrelated property co-owners or for remarried couples.
  • No right of survivorship, so when one person dies their share of the property is passed on according to instructions in the deceased’s will. Without a will, the state decides what happens to their share of the property.
  • If one person dies and the property shares are not held in a trust, they will go through probate.
  • Shares that transfer to the survivor count against the federal estate tax credit.
  • Each co-owner can convey his or her portion of the estate without the consent of the other owner.
  • There is no protection from creditors as in tenancy by the entirety.

Two interesting uses of tenancy in common for married individuals:

  • A couple each married for the second time, both with children from previous marriages, can buy property as tenants in common. This way, when one spouse dies their own children can inherit their share of the property as stated in their will.
  • A married couple is concerned about the health of the husband. Anticipating the husband’s imminent death, the couple retitles their property as tenants in common with the husband holding a large majority of the property. When the husband dies, his share will pass at the date of death value to his wife. Now if the wife chooses to share the property, the capital gains tax will be much lower.

You can read more about different ways to title property in our law library, including, “Estate Planning and Tenancy by the Entirety”, “Estate Planning and Joint Tenancy with Right of Survivorship”, and “Estate Planning and Sole Ownership”.

To learn more about holding Pennsylvania property in tenancy by the entirety and other estate planning matters, please contact the experienced estate planning attorney at the law offices of Shields and Boris.

Elder Law Offices of Shields and Boris

109 VIP Drive

Suite 200

Wexford, PA 15090

Toll Free: (888) 444-4093

Phone: (724) 934-5044


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Elder Law Offices of Shields and Boris
109 VIP Drive
Suite 200
Wexford, PA 15090
Phone: (724) 934-5044
Toll Free: (800) 879-0984
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