The Legal Information Institute explains that joint ownership is “a concept in property law that refers to the ownership of property by two or more people.” When property is jointly owned in Indiana, what happens after one or both co-owners pass away depends on the type of ownership arrangement. Dealing with joint ownership and probate can be challenging. You do not have to do it alone. At White & Jocham, we are leaders in estate planning and probate law. Here, our Indianapolis elder law attorney provides a guide to navigating probate in Indiana with joint ownership.
Understanding the Four Types of Joint Ownership of Property in Indiana
Property may be owned by a single person, multiple people, a single entity, multiple entities, or a combination of individuals and entities. In Indiana, there are actually multiple different types of joint property ownership. Here is an overview of four different forms of joint ownership:
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- Tenancy in Common: Tenancy in common is the default form of joint ownership in Indiana unless the deed specifies otherwise. Each co-owner (“tenant”) holds an undivided interest in the property. Notably, these interests are fully transferable during life and at death. A tenant may sell, gift, or bequeath their share without consent from the others. There is no right of survivorship. When a tenant dies, their share passes through their estate rather than automatically to surviving co-owners.
- Joint Tenancy with Right of Survivorship: Indiana recognizes joint tenancy with right of survivorship (JTWROS). With that being said, it must be expressly stated in the deed. Under this arrangement, two or more people own equal, undivided shares of property. The key feature is survivorship. That matters a lot because when one joint tenant dies, their interest will simply automatically pass to the other owners.
- Tenancy by the Entirety: Tenancy by the entirety is available only to married couples in Indiana. In other words, it is a specialized type of joint property. It provides both a right of survivorship and enhanced creditor protections. Neither spouse can unilaterally sell, transfer, or encumber the property without the other’s consent. When one spouse dies, the surviving spouse automatically owns the entire property. In many ways, it is similar to joint ownership with the right of survivorship. However, one big difference is that married couples get far stronger protection from creditors. That can matter a lot.
- Transfer on Death (TOD) Ownership: Finally, Indiana law allows property owners to establish Transfer on Death (TOD) deeds. It is a type of property deed that designates beneficiaries to receive property automatically at death. Unlike joint tenancy or tenancy by the entirety, the owner retains full control during their lifetime, including the ability to sell, mortgage, or revoke the TOD designation. The beneficiary has no ownership rights until the owner’s death. However, upon the death of the original owner, the beneficiary will get full property rights.
What to Know About Probate and Each Type of Joint Property
Under Indiana law, probate is a court-supervised legal process used to settle a deceased person’s estate. It involves validating the will (if one exists), identifying and valuing assets, paying debts and taxes, and distributing the remaining property to the proper beneficiaries. Probate is required by law in many cases. Though smaller estates may qualify for simplified procedures if they fall below certain dollar thresholds under Indiana law. Probate can be very complicated, especially when jointly owned property is involved. How joint ownership is handled during probate will depend, in large part, on the specific type of joint ownership in question. Here is an overview of how each type of joint ownership is handled in probate:
- Tenancy in Common and Probate in Indiana (It is Required): Property owned as tenancy in common is subject to probate in Indiana. When a co-owner dies, their share does not automatically pass to surviving owners but instead enters their estate. That share is distributed under the terms of the will or Indiana’s intestacy laws. This can result in multiple heirs holding partial interests, often requiring partition or sale to resolve disputes.
- Joint Tenancy with Right of Survivorship and Probate in Indiana (It is Not Required): Property held in joint tenancy with right of survivorship bypasses probate entirely. When one owner dies, their interest automatically transfers to the surviving co-owners by operation of law. No probate court action is needed to effectuate the transfer, although recording the death certificate may be required. This avoids delay but limits the ability to direct property to heirs outside the survivorship chain.
- Tenancy by the Entirety and Probate in Indiana (It is Not Required): For married couples in Indiana, tenancy by the entirety also avoids probate. At the death of one spouse, full ownership immediately vests in the survivor without court involvement. This protection is automatic and cannot be altered by a will. It provides both efficiency in transfer and continuity of ownership for the surviving spouse.
- Transfer on Death (TOD) Deeds Property and Probate in Indiana (It is Not Required): Finally, this type of joint ownership is excluded from probate. Upon the owner’s death, title passes directly to the named beneficiary or beneficiaries. The beneficiary simply records the death certificate and an affidavit to perfect the title. This mechanism allows the property to transfer efficiently without delay or court oversight.
How Our Indiana Probate Lawyers Can Help
Do you have questions about how jointly owned property should be dealt with in the probate process in Indiana? You are certainly not alone. At White & Jocham, we have the knowledge, skills, and experience to help you find the best outcome in your case. Our legal team is proactive and solutions-focused. Your initial consultation with your Indianapolis probate and elder law attorney is completely confidential and without further obligation.
Call Our Indianapolis Probate Lawyer Today
At White & Jocham, our Indiana elder law attorney has extensive experience handling probate cases. If you have any questions or concerns about probate with joint ownership, we are here to help. Give us a call now or contact us online to set up your completely confidential, no obligation initial case review. We provide probate law services in Indianapolis, Greenfield, and throughout the region.
