United States
Hong KongTitling: the thing that overrides the will
Joint tenancy with right of survivorship and tenancy by the entirety pass to the survivor outside probate. Tenancy in common passes by will. Beneficiary designations control the asset regardless of what the will says.
Learn this before anything else in the domain, because it decides what the rest of the plan can reach.
The forms
| Form | Passes at death to | Probate |
|---|---|---|
| Sole ownership | Whoever the will names, or heirs under intestacy | Yes |
| Joint tenancy with right of survivorship | The surviving joint tenant | No |
| Tenancy by the entirety | The surviving spouse | No |
| Tenancy in common | The owner's estate, by will or intestacy | Yes |
| Community property | The decedent's half by will; the survivor keeps their half | Usually yes for the decedent's half |
| Community property with right of survivorship | The surviving spouse | No |
Two words decide it: right of survivorship. Where those words are present, the asset passes automatically and the will is irrelevant to it.
Tenancy by the entirety
Available only to married couples, in states that recognize it. It carries survivorship and adds creditor protection: a creditor of one spouse generally cannot reach the property.
Neither spouse can sever it unilaterally, unlike joint tenancy, where one owner can convert their interest to a tenancy in common by transferring it.
Tenancy in common
No survivorship. Each owner has a separate, transferable interest that passes under their own will, and shares need not be equal.
It is the right structure for unmarried co-owners, business partners and blended families - anyone who wants their share to go to their own beneficiaries rather than to the co-owner.
Retirement accounts, life insurance, annuities and transfer-on-death accounts pass by designation. A will cannot redirect them, a trust cannot capture them unless it is named, and reviewing them is the highest-value hour in most estate plans.
The step-up consequence
Titling drives basis. In a common law state, jointly held property receives a step-up on half its value at the first death. In a community property state, community property receives a step-up on the whole value.
That difference is substantial for a surviving spouse holding appreciated assets, and it is a favorite question.
The joint tenancy trap
Adding a child as a joint tenant to avoid probate is common, well intentioned, and usually a mistake.
It is a completed gift of an interest, exposes the asset to the child's creditors and divorce, gives up unilateral control, loses part of the step-up, and disinherits the other children if the survivor keeps it. A transfer-on-death designation or a revocable trust achieves the probate objective without any of that.
Dollar limits here are indexed annually and the transfer tax exclusion was changed by the 2025 reconciliation act. Confirm the current figure before relying on it.
Common questions
Does a will override a beneficiary designation?
No. Retirement accounts, life insurance, annuities and transfer-on-death accounts pass by designation regardless of what the will says.
What is the difference between joint tenancy and tenancy in common?
Joint tenancy carries a right of survivorship, so the asset passes automatically outside probate. Tenancy in common has no survivorship, and each owner's share passes under their own will.
What is tenancy by the entirety?
A married-couple form available in some states, carrying survivorship plus creditor protection - a creditor of one spouse generally cannot reach the property, and neither spouse can sever it alone.
How does titling affect basis?
In a common law state jointly held property gets a step-up on half its value at the first death. In a community property state, community property gets a step-up on the whole value.
Should you add a child as a joint tenant to avoid probate?
Usually not. It is a completed gift, exposes the asset to the child's creditors and divorce, loses part of the step-up and can disinherit other children. A transfer-on-death designation or revocable trust is better.