How you own your property is your first consideration. This usually determines how assets can be transferred. For joint tenancies between spouses or tenancies by the entirety, each spouse will be deemed to hold one-half of the value of the property, regardless of who furnished the consideration. (The old "consideration furnished" rule meant property was considered in the husband's estate for tax purposes unless the wife could prove her contribution.) The new law expands the 50 percent wife-50 percent husband ownership rule to all joint tenancies, with rights of survivorship held by a husband and wife. The new treatment of jointly held property sometimes eliminates the need to change joint deeds to tenancies in common. However, when property goes directly to a survivor, all other transfer options that could be used to reduce taxes for the family are lost.

For joint tenancies who are not husband and wife, the "consideration furnished" rule still applies.

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Property owned in a joint tenancy with rights of survivorship means that each owner owns "part of all" of the property and when one joint owner dies, the property goes to the survivor. A tenancy by the entirety is a joint tenancy between a husband and wife. The usual alternative method of jointly owning property is as tenants in common. Each owner in a tenancy in common owns "all of a part" and only that part is considered in the person's estate. Property held in joint tenancy or in a tenancy by the entirety is usually deeded with wording similar to this:

I, John J. Landbaron, as Grantor, do hereby convey and warrant unto Joe B. Fewacres and wife Mary C. Fewacres, as Grantees, as an estate by the entirety, with full rights of survivorship and not as tenants in common, the following property...."

The importance of holding property in a joint tenancy or in a tenancy in common depends on the size of the estate, the balance of the estate between a husband and wife, and the wishes of the couple in transferring the property.

The major advantage of owning property jointly with rights of survivorship is that the property goes directly to the survivor and does not pass through probate proceedings. The major disadvantages of holding property in joint tenancy or tenancy by the entirety are the loss of control of the property because it can not be willed by either party and the estate tax problems that occur when all the property goes to the survivor.

Joint tenancy ownership causes difficulties in using trusts, and creditors of one party may be able to reach the property in meeting claims. Problems are amplified if divorce occurs. Although specified joint tenancy property passes outside probate, seldom will probate proceedings be avoided by an estate because of other properties owned under a different arrangement.