Vesting Ways to Hold Title

California Residential Property



TENANCY IN COMMON JOINT TENANCY COMMUNITY PROPERTY COMMUNITY PROPERTY
with Right of Survivorship
Parties Two or more persons1 Two or more natural persons Spouses or domestic partners2 Spouses or domestic partners2
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 conveyances
(creating identical interests);
vesting must specify joint tenancy
Presumption from marriage
or domestic partnership or can be
designated in deed
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 death
Entire property may be 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
devisees or heirs by will or intestacy
Decedent’s interest automatically
passes to surviving joint tenant
(“Right of Survivorship”)
Decedent’s 1/2 interest passes to
surviving spouse or domestic partner
unless otherwise devised by will
Decedent’s 1/2 interest automatically
passes to surviving spouse or domestic
partner due to right of survivorship
Possible
Advantages/
Disadvantages
Co-owners interests may
be separately transferrable3
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 advantage2
Right of survivorship; mutual
consent required for transfer;
surviving spouse or domestic partner
may have tax advantage
1. “Persons includes a natural person as well as validly formed cooperation, limited partnership, limited liability company or general partnership. Trust property is vested in the trustee (usually a natural person or corporation).
2. Transfers by spouses/domestic partners may require a quitclaim deed from the other spouse/partner for title insurance purposes.
3. If co-Owners are spouses/domestic partners, property may be subject to legal presumption of “community property” requiring consent of both spouses/partners to convey or encumber title notwithstanding vesting as “joint tenancy”
THIS IS PROVIDED FOR GENERAL INFORMATION ONLY. FOR SPECIFIC QUESTIONS OR FINANCIAL, TAX OR ESTATE
PLANNING GUIDANCE, WE SUGGEST YOU CONTACT AN ATTORNEY OR CERTIFIED PUBLIC ACCOUNTANT.
Vesting Ways to Hold Title