Archive for February 28th, 2006

Different ways to take title to Calif Residential Real Estate

Tuesday, February 28th, 2006

TENANCY IN COMMON

JOINT TENANCY

COMMUNITY PROPERTY

COMMUNITY PROPERTY WITH RIGHTS OF SURVIVORSHIP

Parties

Two or more persons’ (may be
spouses or domestic partners`).

Two or more persons’ (may be
spouses or domestic partners’).

Husband and wife or
domestic partners.

Husband and wife or
domestic partners.
Division

Ownership can be divided into
any number of interests, equal
or unequal.

Ownership interests
must be equal.

Ownership interests must
be equal.

Ownership interests must
be equal.
Creation

One or more conveyances
(Law presumes interests are
equal if not otherwise specified).

Single conveyance (creating
identical interests). Vesting must
specify joint tenancy.

Single conveyance or presumption from marriage or domestic
partnership.

Single conveyance and spouses or
domestic partners must indicate
consent which can be on deed.

Possession
and Control

Equal.

Equal.

Equal.

Equal.

Transferability

Each co-owner may transfer
or mortgage their
interest separately.’

Each co-owner may transfer
his/her interest separately but
tenancy in common results;

Both spouses or domestic
partners must consent to transfer
or mortgage.

Both spouses or domestic
partners must consent to transfer
or mortgage.

Liens Against One Owner

Unless married or domestic partners, co-owner’s interest not subject to liens of other debtor/ owner but forced sale can occur.’

Co-owner’s interest not subject to liens of other debtor/owner but forced sale can occur if prior to co-owner’s/debtor’s debt

Entire property subject to forced sale to satisfy debt of either spouse or domestic partner.

Entire property subject to forced sale to satisfy debt of either spouse or domestic partner.

.

Death of Co-Owner

Decedent’s interest passes to his/her heirs by will or intestacy.

Decedent’s interest automatically passes to surviving joint tenant (Right of Survivorship).

Deceased’s 1/2 interest passes to surviving spouse or domestic partner unless otherwise devised by will.

Deceased’s 1/2 interest auto-­ matically passes to surviving spouse or domestic partner due to Right of Survivorship.

Possible Advantages/ Disadvantages

Co-owner interests may be separately transferable.

Right of Survivorship (avoids probate). May have tax disadvantages for spouses

Qualified survivorship rights. Mutual consent required for transfer. Surviving spouse or domestic partner’ may have tax advantage.

Right of Survivorship. Mutual consent required for transfer. Surviving spouse or domestic partner may have tax advantage.

Information from First American Title Company.  Provided for information only, you should consult with an attorney and Certified Public Accountant prior to taking or changing title on real property.

 

 

 

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Holding Title

Tuesday, February 28th, 2006
TENANCY IN
COMMON		 JOINT TENANCY COMMUNITY
PROPERTY		 COMMUNITY PROPERTY
WITH RIGHTS OF
SURVIVORSHIP
Parties Two or more persons’ (may be
spouses or domestic partners`).		 Two or more persons’ (may be
spouses or domestic partners’).		 Husband and wife or
domestic partners.		 Husband and wife or
domestic partners.
Division Ownership can be divided into
any number of interests, equal
or unequal.		 Ownership interests
must be equal.		 Ownership interests must
be equal.		 Ownership interests must
be equal.
Creation One or more conveyances
(Law presumes interests are
equal if not otherwise specified).		 Single conveyance (creating
identical interests). Vesting must
specify joint tenancy.		 Single conveyance or presumption from marriage or domestic
partnership.		 Single conveyance and spouses or
domestic partners must indicate
consent which can be on deed.
Possession
and Control
 Equal. Equal. Equal. Equal.
Transferability Each co-owner may transfer
or mortgage their
interest separately.’		 Each co-owner may transfer
his/her interest separately but
tenancy in common results;		 Both spouses or domestic
partners must consent to transfer
or mortgage.		 Both spouses or domestic
partners must consent to transfer
or mortgage.
Liens Against One Owner Unless married or domestic partners, co-owner’s interest not subject to liens of other debtor/ owner but forced sale can occur.’ Co-owner’s interest not subject to liens of other debtor/owner but forced sale can occur if prior to co-owner’s/debtor’s debt Entire property subject to forced sale to satisfy debt of either spouse or domestic partner. Entire property subject to forced sale to satisfy debt of either spouse or domestic partner.
.
Death of Co-Owner Decedent’s interest passes to his/her heirs by will or intestacy. Decedent’s interest automatically passes to surviving joint tenant (Right of Survivorship). Deceased’s 1/2 interest passes to surviving spouse or domestic partner unless otherwise devised by will. Deceased’s 1/2 interest auto-­ matically passes to surviving spouse or domestic partner due to Right of Survivorship.
Possible Advantages/ Disadvantages Co-owner interests may be separately transferable. Right of Survivorship (avoids probate). May have tax disadvantages for spouses Qualified survivorship rights. Mutual consent required for transfer. Surviving spouse or domestic partner’ may have tax advantage. Right of Survivorship. Mutual consent required for transfer. Surviving spouse or domestic partner may have tax advantage.
.

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