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Making an Indiana TOD Deed When You Co-Own Property

Before you can make your TOD deed in Indiana, you must know how you own the property with your co-owner. Your co-ownership method will affect whether you should make the TOD deed with your co-owner or whether you should make one alone.

If you don't know how you hold title to the property, start by looking at the deed that transferred the property to you. It might say, for example, "to Ellen Bauman and Edward M. Bauman, as joint tenants," or "to Jonathan G. Costa and Sandra L. White, as tenants in common."

There are three common ways to co-own property in Indiana.

1. Joint Tenancy

If you co-own real estate in joint tenancy (also called "joint tenancy with right of survivorship"), when one co-owner dies, that co-owner's share of the property will automatically go to the surviving co-owner(s).

You can choose to make a TOD deed together with the other joint tenant(s) or you can make one on your own. However, it's important to understand the effects of this choice. Here's why: In Indiana (unlike in other states), making a TOD deed on your own breaks the joint tenancy, which could significantly affect who will own the property when each owner dies.

Making a TOD Deed With the Other Joint Tenants

When you make a TOD deed together with the other joint tenant(s), you are naming someone to receive the property after all of the joint tenants have died.

Example: Claire and Kendra co-own their home as joint tenants. They make a TOD deed together and name Oscar as the beneficiary. When Claire dies, Claire's half of the home goes to Kendra, who becomes the sole owner of the entire home. When Kendra dies, the home goes to Oscar under the TOD deed.

Making a TOD Deed Alone

In Indiana, if you make a TOD deed on your own, without the other joint tenant(s), you will turn the joint tenancy into a tenancy in common (see below).

Example: Claire and Kendra co-own their home as joint tenants. Claire makes a TOD deed by herself and names Oscar as the beneficiary. When Claire dies, Claire's half of the home goes to Oscar (not to Kendra, as in the example above). When Kendra dies, her half of the home goes to her inheritor—whomever she named to inherit her home.

When you break the joint tenancy by making a TOD deed without your co-owners, you are undoing the plan they had made for their share of the property. This could have serious and unwanted effects on what happens to their share when they die.

Example: As in the example above, Claire makes a TOD deed that breaks the joint tenancy. Kendra does not have a will because the property is her only significant asset and she was relying on the joint tenancy to pass her share of the property to Claire. When Kendra dies, her share of the property passes to her estranged sister through intestate succession—exactly the opposite of what she wanted when she entered into the joint tenancy with Claire.

If you own your property in joint tenancy, and you plan to make a TOD deed without the other co-owner(s), make sure they know what you're doing so that they can make other plans for their share(s) of the property.

2. Tenancy in Common

If your deed doesn't state how you own the property, you and your co-owners are presumed to own it as tenants in common, unless you've agreed otherwise in writing. If you own your property as a tenant in common, it's best to create a TOD deed on your own (without the other tenants in common). That TOD deed will transfer only your share of the property to the TOD beneficiary when you die.

Example: Raymond and Jack, who are brothers, own a house together as tenants in common. Raymond signs a TOD deed that leaves his half-interest to his daughter. At Raymond's death, his daughter will become a tenant in common with Jack.

3. Tenancy by the Entirety

This form of co-ownership is available only to married couples; when one spouse dies, the survivor automatically owns the entire property. If you and your spouse hold real estate as tenants by the entirety, you both must sign the deed, which will take effect only after both spouses have died. If you sign a TOD deed alone, it will have no effect. (Ind. Code § 32-17-14-11(e)(1).)

If you're not sure how you co-own the property or whether or not your spouse has any rights to it, consult a lawyer. While the guidance here fits most situations, if you have a complicated situation or more complex aims, you should turn to a lawyer for a more tailored solution.

Summary of the Effects of Making a TOD Deed When You Co-Own Property

Below is a chart that summarizes what happens when you make a TOD deed alone or with your co-owner, depending on how you co-own your property. (See above.)

Method of Co-Ownership

Effect of Making a TOD Deed Together

Effect of Making a TOD Deed Alone

Joint tenants

When one co-owner dies, the surviving co-owner will own the property. When the surviving co-owner dies, the property will go to the beneficiary named in the TOD deed.

Co-owners become tenants in common rather than joint tenants. When any co-owner dies, that person's share of property will not pass to the other co-owner. Instead, the share will go to the deceased person's inheritor.*

Tenancy in common

Not recommended.

When any co-owner dies, that person's share of the property will go to the deceased person's inheritor.*

Tenants by the entirety

When one co-owner dies, the surviving co-owner will own the property. When the surviving co-owner dies, the property will go to the beneficiary named in the TOD deed.

Not allowed by law. (If you make a TOD deed alone, it will have no effect.)


* Depending on the deceased person's estate plan, that inheritor might be the beneficiary of a TOD deed, the beneficiary of a will, or (if the deceased person died without a will or estate plan) a family member determined by Indiana's intestate succession laws.

See Indiana Transfer on Death Deeds for more information on making your Indiana TOD deed with Willmaker.