How you hold title over your real estate can affect the outcome of the sale of the property. There are numerous considerations for how to take title including taxes, estate planning, avoiding probate and creditor protection. 210 Grove Street The title company or closer will record your decision on the title deed. (It does not automatically transfer to spouse) More often than not, they leave their half of the title to their surviving spouse. First, tenancy by the entirety creates the semblance of a “third person.” For example, the husband has a creditor judgment recorded against himself from one party. Of course, when the couple engages in any estate planning, a competent lawyer will … There is a tax advantage—a full step-up in basis—which is beneficial for the surviving spouse. Before exploring the ways that ownership is vested, it is important to first understand what title is. Only a married couple may hold title as community property. Community Property. The same rules will apply for same sex married couples. I usually do one that is effective upon death. (Adding the words “an individual” is optional.) This establishes that both spouses want title to the property to be granted to one spouse as that spouse’s sole and separate property. In order for a judgment or lien to attach to the property it must be against both spouses. Suppose your tenant or his guest slips and falls on the porch of your duplex, and the claim exceeds the amount of liability insurance and any umbrella coverage which you have on the property. You have to answer the questions of who should get the house when you’re deciding how you should own it. Community Property Title Only married couples can hold this form of title. Categories: Estate Planning, Article. Each spouse holds an undivided one-half interest in the property. One half of a married couple can also take sole ownership title. As a general rule married couples should take title to any California real estate they own, accumulated during their marriage, as “Community Property with Right of Survivorship.”  That’s the take-home bullet. Parents and their adult children also often hold title this way, as do unmarried couples. Although not required under A.R.S. BEST WAY FOR MARRIED COUPLES TO HOLD TITLE . The advantage of a joint tenancy is that upon death of one of the joint tenants, their interest is transferred outside probate to the surviving joint tenant(s). Need legal help? When one tenant in common dies, his or her share of the jointly owned property is left to whomever is specified in a will or living trust. This ownership method is also available when a married person takes title in his or her name alone. Mon - Fri: 9AM - 7PM 6039 cypress gardens blvd #172 Winter Haven, FL 33884 407-792-5599 In a joint tenancy the couple will hold title to their real estate jointly with equal undivided interests and withrights of survivorship. Get directions, Another Compelling Reason To Wear A Seatbelt, Bankruptcy, Creditors’ Rights, and Reorganization Group, Trust, Wills, Estate Planning, and Elder Law Group, Best Way For Married Couples To Hold Title, Community Property with Right of Survivorship, California’s Response to Covid-19: Regional Stay-at-Home Order Precludes Hotel, Lodging, and Short-Term Rental Reservations, California, Nevada and Federal Covid-19 Tenant Eviction Protection Legislation, AB 3088: NEWSOM SIGNS CALIFORNIA STATEWIDE COVID-19 TENANT EVICTION PROTECTION LEGISLATION, PROPERTY INSURANCE COVERAGE FOR COVID-19 RELATED BUSINESS LOSSES; SCORE ONE FOR THE INSURED, KEEP YOUR DOG “UNDER CONTROL” OR FACE LIABILITY. At the time of closing, the spouse of the buyer will be required to specifically disclaim or relinquish his or her right, title and interest to the property – we call this a “hold harmless” agreement. The Legislature changed how married couples may hold title in California. The simplest and most straightforward form of ownership, it entails taking title to the property in an individual’s own name. Who it’s best for: Married couples in states that allow tenants by entirety. Only persons married to each other may take title as community property with the right of survivorship. Ph: (530) 587-2002 Each owner has a distinct and proportionate interest without the right of survivorship. In a joint tenancy the couple will hold title to their real estate jointly with equal undivided interests and withrights of survivorship. Individuals that are not married … And by the way, don’t be tempted to tell the title officer you’re married if you’re not—it will only create confusion and possible problems down the road. While JTROS may be desired, if you are married, you will most often prefer the protections of T-by-E. Read on! 5470 Kietzke Lane #130 2009 Not long ago, a lady who had been recently widowed came into my office and informed me that she and her husband had owned a vacation home in southwestern Virginia. The property will pass instantly to the surviving spouse upon the death of the other spouse without probate.   However, the application depends on the state in which you live. An undivided interest is an ownership right to use and possess the entire property. For married couples in California, any assets you acquire during marriage are presumed to be community property, unless stated otherwise. If a married couple holds title as tenants by the entirety, lien creditors cannot attach one spouse’s lien or judgment to the property unless the tenancy is severed by either divorce or death. Each party has a full ownership interest in the property. Parents and their adult children also often hold title this way, as do unmarried couples. The only unity involve is possession. “The best advice for a widow or widower is to have the title reviewed by an attorney. Each owner has a distinct and proportionate interest without the right of survivorship. Regus Executive Suites Title and taxation issues both are profoundly different if you are married, and changing your marital status after you buy the house can invite some complicated tax and ownership issues. California married couples generally have three options to take title to their community (vs separate) property real estate: community property, joint tenancy or “Community Property with Right of Survivorship.”  The latter coming into play in California July of 2001. Of course, the answer depends on the circumstances. Note: Arizona is a community property state. The disadvantage of holding title as community property is that a probate or similar proceeding is necessary to transfer title to the surviving spouse—and that can get expensive. Usually, the spouse is asked to sign a quitclaim deed that gives up any ownership claim. Prior to the existence of CPWROS, if married couples wanted to avoid probate and did not have an estate large enough to use a trust for estate planning purposes, their choice was JTWROS. *inclusive of the vesting terms “husband and wife”, as well as “married couple” (for same-sex married couples) WAYS TO TAKE TITLE IN ARIZONA UD 4/2015 DW Tenants by the Entireties (we use T-by-E as a short cut in the business) is a "unity" of ownership that is only availa… What is the best way for a married couple to hold title to their domicile in California - 1)Tenants in Common - Allows for each of them to put their 50% interest in their estate for inheritance; 2) Joint Tenancy - When one person passes, their half interest goes to the surviving spouse or 3)Tenancy by the Entirety - which is like Joint Tenancy with right of survivorship. All things considered the most flexible titling method for a married couple is the OR designation. Property acquired by a husband and wife is presumed to be community property unless legally specified otherwise. Joint Tenancy with Right of Survivorship– Two or more persons may hold title to real property as joint tenants with right of survivorship. What is Title? The Legislature changed how married couples may hold title in California. Read on to learn how to obtain title in California! The Question of the day is whether Tenants by the Entireties (T-by-E) is the same thing as Joint Tenants with Rights of Survivorship (JTROS)? Since California is a community property state, married couples or registered domestic partners are treated as a single economic unit. In California, if a married man or woman wants to acquire a title in their name alone, the spouse or partner must indicate their legal consent. Avvo has 97% of all lawyers in the US. Jim’s practice areas include:  real estate, development, construction, business, HOA’s, contracts, personal injury, accidents, mediation and other transactional matters. A married couple seeking to hold title to real property located in Arizona in a form other than community property may do so by renouncing the community property form and specifically accepting another form of co-tenancy. Arizona is a Community Property State. I would add “for a change,” but that goes without saying. An individual may hold title in his or her name alone, whether married or unmarried, e.g., Jane Doe, an individual. Tenancy in Common– Two or more persons may hold title to real property as tenants in common. Your title company or attorney can advise you of the best way to hold title to suit your individual circumstances. 8 Ways to Hold Title on your California Home. For more information or assistance in determining the best way to hold title for your unique situation, contact your real estate attorney or tax adviser. If you are single, one way to hold title to your home is in your name alone. If you were a married couple living Arizona, you had three options as how to hold the title to real property in Arizona. The Homestead can be transferred to a joint revocable trust or 50/50 to each of the spouses revocable living trust. Example: John Doe, a married man, as his sole and separate property. Community Property– Only married people can hold title as community property. T-by-E was established hundreds of years ago under the old English common law based on the fact that a husband and a wife were considered a "Unity" of One. Community Property with Right of Survivorship– This is another way for a married couple to hold title to real property. Married couples might also hold title in Joint Tenancy. Indeed, when one owner dies, full ownership does transfer automatically to the surviving owner without probate. But, as you will see from our research below, not all states offer this form of ownership.