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Today, I’m joined by Michael E. Graham, a local attorney who specializes in estate planning. Today, we’ll discuss some of the different ways to hold title and the respective pros and cons of each.
Michael says that for single persons, holding title alone is a no-brainer because you’re taking the title as separate property. The exception is if you’re a married person and you take title solely under the married person’s name, under California law, that’s still considered to be a community property acquisition, unless there is proof that it is separate property.
If the married person wants to take title separately, the title company requires the other spouse to sign off on an inter spousal deed or some kind of quit-claim deed. Simply notify the escrow officer, and they should be able to assist you.
If more than one person is taking title to property, then there are various forms of title. The two most common are joint tenancy and tenancy in common. Joint tenants must hold equal interests in the property. If one person owns 60% and the other owns 40%, then you would fall under a tenancy in common arrangement.
The joint tenancy form of title is the default option that title companies usually offer married people. However, it is not the best option for married people. If one spouse were to pass away, the surviving spouse would record an affidavit with the death certificate in order for the title to pass to them. This is a simple way of avoiding probate court.
"Joint tenancy is the default option for married couples, but is not always the best"
There is also a new option for married people who want to hold title with right of survivorship: community property with right of survivorship. This is essentially the same thing as the joint tenancy, and an affidavit if one spouse passes away for the property to vest in the surviving spouse. Michael recommends this for married people in California because there is an important tax ramification.
Tenancy in common is the other form of holding title between adults. Tenants in common means people can own unequal interests that are then passed by the will. If you say in your will that you want the title to go to someone who is not a tenant in common, then that can happen. Tenants in common also allows for restrictions. You may want to consider some type of tenant in common agreement so you don’t end up owning the vacation home with your ex-wife.
A popular alternative is holding title through a trust. The property can still be a community property asset within the context of the trust, and the title can be passed to the person entitled under the trust by the surviving trustee. This guarantees you a sound estate.
We know this is a lot of information, so if you have any questions, please do not hesitate to reach out to us! We look forward to hearing from you!