Common Methods of Holding Title
Remember: How title is vested has important legal consequences and/or involve such matters as property taxes, income taxes, inheritance and gift taxes, transferability of title and exposure to creditor's claims. Also, how title is vested can have significant probate implications in the event of death.
You may wish to consult an attorney to determine the most advantageous form of ownership for your particular situation.
Sole ownership may be described as ownership by an individual or other entity capable of acquiring title. Examples of common vesting cases of sole ownership are:
- A Single Man/Woman: A man or woman who has not been legally married. For example: Bruce Buyer, a single man.
- An Unmarried Man/Woman: A man or woman who was previously married and is now legally divorced. For example: Sally Seller, an unmarried woman.
- A Married Man/Woman as his/her Sole and Separate Property: A married man or woman who wishes to acquire title in his or her name alone. The title company insuring title will require the spouse of the married man or woman acquiring title to specifically disclaim or relinquish his or her right, title and interest to the property. This establishes that it is the desire of both spouses that title to the property be granted to one spouse as that spouse's sole and separate property For example: Bruce Buyer, a married man, as his sole and separate property.
Title to property owned by two or more persons may be vested in the following forms:
- Community Property: A form of vesting title to property owned by husband and wife during their marriage, which they intend to own together. Community property is distinguished from separate property, which is property acquired before marriage, by separate gift or bequest, after legal separation, or which is agreed in writing to be owned by one spouse.
In California, real property conveyed to a married man or woman is presumed to be community property, unless otherwise stated. Since all such property is owned equally, husband and wife must sign all agreements and documents transferring the property or using it as security for a loan. Under community property, each spouse has the right to dispose of one half of the community property, by will. For example: Bruce Buyer and Barbara Buyer, husband and wife, as community property. Barbara could will her property to someone other than Bruce if she chose.
- Community property with Right of Survivorship: A form of vesting title to real property owned by husband and wife during their marriage which they intend to own together. This form of holding title shares many of the characteristics of Community Property but adds the benefit of the right of survivorship similar to the title held in joint tenancy. There may be tax benefits for holding title in this manner. Interest must be created on or after July 1,2001. On the death of a spouse, the decedents interest ends and the surviving spouse owns the property by survivorship and owns the property in severalty. For example: Bruce Buyer and Barbara Buyer, husband and wife as community property with right of survivorship. Should Bruce die, his interest could pass to Barbara.
- Joint Tenancy: A form of vesting title to property owned by two or more persons, who may or may not be married, in equal interest, subject to the right of survivorship in the surviving joint tenant(s). Title must have been acquired at the same time, by the same conveyance, and the document must expressly declare the intention to create a joint tenancy estate. When a joint tenant dies, title to the property is automatically conveyed by operation of law to the surviving joint tenant(s). Therefore, joint tenancy property is not subject to disposition by will. For example: Bruce Buyer and Barbara Buyer, husband and wife as joint tenants.
- Tenancy in Common: A form of vesting title to property owned by any two or more individuals in undivided fractional interests. These fractional interests may be unequal in quantity or duration and may arise at different times. Each tenant in common owns a share of the property, is entitled to a comparable portion of the income from the property and must bear an equivalent share of expenses. Each co-tenant may sell, lease or will to his/her heir that share of the property belonging to him/her. For example: Bruce Buyer, a single man, as to an undivided 1/4 interest and Penny Purchaser, a single woman, as to an undivided 3/4 interest, as tenants in common.
Other ways of vesting title include:
- A corporation
- A partnership
- As Trustees of a Trust
- Limited Liability Companies (LLC)
If you would like information regarding the above 4 samples of vesting, let me know.
Email me at Diane@DianeVerducci.com