Jointly held vs solely owned

If you are reading this in the weeks after losing someone, the choice of words on this page is deliberately plain. The rules below decide whether you can use the affidavit at all.

“Probate” is the court process by which a deceased person’s property is collected, debts are paid, and what remains is distributed to the heirs or beneficiaries named in the will. Not every asset goes through that process. An asset only passes through probate if, at the moment of death, it was titled solely in the decedent’s name and had no beneficiary designation that would route it elsewhere.

Most states then offer a shortcut — the small-estate affidavit — when the value of the probate estate falls under a statutory threshold. That threshold is the dollar figure shown on each state page. The question this article answers is: which assets contribute to that figure, and which do not?

Joint tenancy with right of survivorship (often abbreviated JTWROS) is a form of co-ownership in which two or more people each hold an undivided interest in the entire asset, and on the death of any owner, the survivors automatically take the deceased owner’s share. The transfer happens by operation of law at the moment of death — no court order, no probate proceeding, no affidavit.^[1]

For the threshold calculation, this means a JTWROS asset contributes nothing to the probate estate when one of the joint owners has survived. The deed or account agreement is the controlling document; what the will says about the asset is generally irrelevant.

Tenancy by the entirety is a form of co-ownership available only to married couples (in some states, also to civil-union partners or registered domestic partners). It looks like joint tenancy from the threshold perspective — the surviving spouse takes the whole property by operation of law — but it carries an additional creditor-protection feature during life: a creditor of one spouse alone generally cannot reach property held by the entirety.^[2]

Roughly half the states recognize tenancy by the entirety, and several of those limit it to real estate. Whether a married couple’s home is titled as JTWROS or as tenants by the entirety usually does not change the threshold answer; either way, the asset passes outside probate. It does, however, change what happens during life if one spouse incurs a judgment.

One practical caution: tenancy by the entirety dissolves on divorce. In most states the title automatically converts to tenancy in common on the entry of the divorce decree, even if the deed is not re-recorded. For an estate where the decedent’s deed still names a former spouse as a tenant by the entirety, the actual current title may be tenancy in common — and the decedent’s share is part of the probate estate. The deed alone is not always the controlling document; the marital status at the time of death matters.

Nine U.S. states are community-property states: Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington, and Wisconsin. Alaska is an opt-in jurisdiction, where spouses can elect community-property treatment for some or all of their assets.^[4]

Community property is, broadly, property earned or acquired by either spouse during the marriage. On the death of one spouse, the surviving spouse already owns half of the community property; the deceased spouse’s half is what passes by will or by the state’s intestate-succession default rules. The deceased’s half is therefore part of the probate estate unless additional steps were taken.

Several community-property states offer a survivorship variant — community property with right of survivorship (CPWROS or CPRS) — in which both halves pass to the surviving spouse without probate, in the same way as joint tenancy.^[3] The deed or account agreement must explicitly elect this form; it is not automatic.

Tenancy in common is the form of co-ownership most people would draw if asked what “owning property together” means without any legal background. Each tenant in common owns a fractional share — sometimes equal, sometimes not — and on the death of any tenant, that tenant’s share passes through the deceased’s estate. It does not automatically go to the other co-owners.^[5]

For threshold purposes, a tenant-in-common interest is part of the probate estate. If a parent owned a one-third tenant-in-common interest in a vacation cabin worth $300,000, the value contributing to the threshold calculation is $100,000 (the decedent’s share), not zero, and not the full $300,000.

Tenancy in common is the default form when a deed simply lists two people without specifying a survivorship form. If you are looking at a deed that says only “to Anne Doe and Charles Doe” with no further language, the law in most states treats it as a tenancy in common.

The threshold question is mechanical. You list every asset the decedent had at death, exclude the ones that pass outside probate by title or by beneficiary designation, value what remains, and compare that figure to the state cap.

A house held in JTWROS with a surviving spouse: excluded. A bank account with a payable-on-death beneficiary: excluded (covered in the next pillar). A solely titled brokerage account with no beneficiary: included. A tenant-in-common interest in farmland: included, at the decedent’s fractional share.

Three additional details matter at this step:

• Encumbrances reduce the value. Most state statutes define the threshold figure as the value of the asset less liens and encumbrances. A car worth $15,000 with an $11,000 loan against it contributes $4,000 to the calculation, not $15,000.
• Real property is treated separately in many states. A number of states either exclude real property from the small-estate-affidavit pathway entirely or set a separate cap for real property. Check the state page for the specific rule before assuming.
• Aggregate-cap states count title-passing assets too. A few states (Florida, Louisiana, Wyoming) count every asset toward the cap, including those that pass by survivorship. Read the state page carefully.
• Homestead and family-allowance carve-outs. Several states reduce the threshold figure further by deducting a homestead exemption, a statutory spousal allowance, or a family allowance for surviving children. The same dollar value of personal property may produce different threshold answers in two otherwise comparable states because of these carve-outs.
• Date of valuation. The threshold is generally tested against the asset’s fair market value at the date of death. Subsequent increases or decreases in value — a stock-market rally, a market downturn — do not change the eligibility answer retroactively. Save documentation of values as of the date of death.

Two other shapes recur and are worth naming. First, a few states treat vehicles as a separate carve-out, transferable under a dedicated motor-vehicle statute regardless of total estate value; Alaska, Hawaii, Massachusetts, and Utah are examples on the state pages of this site. Second, real property in aggregate-capstates (Florida, Louisiana, Wyoming) is included in the same single threshold as personal property, while in separate-cap states (Arizona, Nebraska, Oregon, West Virginia) real property has its own dollar limit, applied independently of the personal-property limit. Reading the state page once, with these two shapes in mind, will usually answer the threshold question for that state in a few minutes.

Consider a decedent who owned, at the moment of death:

• A primary residence worth $250,000, titled JTWROS with the surviving spouse.
• A brokerage account worth $30,000, titled solely in the decedent’s name with no TOD beneficiary.
• A car worth $14,000, titled solely in the decedent’s name.
• A checking account worth $6,000, with the surviving spouse as a payable-on-death beneficiary.

For the threshold calculation, the residence is excluded (passes outside probate by survivorship), and the checking account is excluded (passes outside probate by beneficiary designation, covered in the next pillar). The probate estate is the brokerage account plus the car: $44,000.

The discipline of this calculation is the discipline of the whole affidavit pathway. Get the title rules right and the threshold question is usually a short arithmetic exercise. Get them wrong and the answer comes out by tens or hundreds of thousands of dollars.

A practical note for the surviving family member doing this exercise for the first time: deeds and account agreements use a small vocabulary that is easy to read once the words are familiar. The key phrases to look for are “joint tenants with right of survivorship,” “tenants by the entirety,” and “tenants in common,” sometimes abbreviated as JTWROS, TbyE or TBE, and TIC. On a brokerage statement, the registration line will use one of these phrases or the abbreviation; on a deed, it appears in the vesting clause near the names of the grantees. If the document uses none of these phrases and just lists names joined by “and,” the default form depends on the relationship between the parties: tenancy by the entirety where the parties were married and the state recognizes that form, joint tenancy where the document explicitly says so, and tenancy in common otherwise. State pages on this site link to the relevant state statutes for the precise default rule.