The manner in which you hold title to California real property will affect who will receive your property when you die.
A client recently came to our office to discuss a business deal he was entering into with a real estate investor. Their idea was to purchase a house together, fix it up, and then sell it for a quick profit. The business partner said that they should take title to the house as Joint Tenants and the client presented the documents to us for our review.
The client, for whom we had already prepared a trust, wanted to take title in the name of his trust as a joint tenant. He wrongly believed that his family would inherit his share of the house if he hadn’t sold the property before he died.
Below is a discussion of a few ways that people can take title to real property in California. As a home buyer you are asked to sign and initial your name on dozens of documents. You are asked question after question about the home purchase and oftentimes you just rely on someone else to make decisions that, unbeknownst to you, can have significant ramifications for you and your loved ones. One question that you are sure to be asked is how you would like to “hold title” to property. Before answering that question, we suggest, at a minimum, that you read below about the most common ways to hold title to real property.
Tenants in Common
Two or more people can own a property as Tenants in Common. Each of the owners can own a specific portion of a property, however if no portion is listed on the deed then it is presumed that each owner owns an equal portion of the property. Oftentimes co-owners chose this method of holding title if they own unequal shares of the property or want to retain the right to control who will own the property after their death.
An owner of property as a Tenant in Common may sell, give away, or otherwise transfer his or her ownership interest to another person. An owner of property as a Tenant in Common can include the property in their will or trust (but only if the owner takes title of the property in his/her trust) and can pass along ownership interest in the property in their estate planning documents.
If you take title to property without designating how title is to be held then it will be presumed by law that you took title as Tenants in Common. Even if you have a trust, any property you buy will not automatically be included in your trust.
Please contact us to discuss how you can avoid probate by holding your ownership interest in your trust.
Joint Tenancy
Two or more people can own property as Joint Tenants. Each of the owners typically own equal shares of the property. The biggest distinction between Joint Tenancy and Tenants in Common is that an individual who owns a property in Joint Tenancy has no interest that can be transferred to his or her heirs because his interest is transferred to the surviving Joint Tenant or Joint Tenants at the time of his or her death. Joint Tenancy is also known as Joint Tenancy with Right of Survivorship.
Owning property in Joint Tenancy can help some avoid probate, however it may not be the best idea for most people. Please contact us to discuss if Joint Tenancy is best for your situation or if you need assistance in transferring the Joint Tenancy interest of a deceased Joint Tenant.
Community Property
Married couples may hold title to property as Community Property. The form of title is similar to Joint Tenancy for a married couple or Joint Tenancy for those with a registered domestic partnership agreement.
Each spouse (or registered domestic partner) has the right to dispose of one-half of the Community Property under the laws of community property. When one spouse dies, their one-half interest in the community property will go to the surviving spouse if the deceased spouse did not otherwise dispose of his or her share of the Community Property to someone else.
Many people chose to hold title to property as Community Property, however this form of title does not control the distribution of the property when both spouses die in a common disaster. Please contact us to discuss if your needs are better served by having a comprehensive estate plan, which would include a Revocable Living Trust.
Revocable Living Trusts
In California, an individual, a married couple, or a couple with a registered domestic partnership may establish a Revocable Living Trust in order to facilitate the distribution of their assets at the time of death and to avoid probate. These trusts are also interchangeably known as a Living Trust, a Revocable Trust, or an Inter Vivos Trust.
If you have set up a Revocable Living Trust then you may take title to property in the name of your trust. A Revocable Living Trust, which has been property prepared, will allow the property to be transferred without requiring your beneficiaries to use the time-consuming and costly probate court. Since you (and your spouse) are the trustees of your Revocable Living Trust while you are living, you (and your spouse) continue to have the right to sell or otherwise transfer your share of the trust property, to change your beneficiaries, or revoke the trust altogether.
Conclusion
For the client who was going to take title to the investment property with the investor as Joint Tenants, we were able to advise him that his family would not inherit the investment property because his business partner would automatically take title to the property if the client died. The client decided not to go into business with the real estate investor.
Your decision about how you wish to hold title to your property can have a significant impact on you, your family, and anyone with whom you own property. Please contact us so that our experienced estate planning attorneys can help you to avoid unnecessary property taxes or probate expenses.