What happens to my property in California if I have a joint tenant and I die?

Last updated August 5, 1999
Most California married couples own their homes as “joint tenants,” because they want the surviving spouse to own the entire home, without any formal court proceeding to confirm the transfer.
Unfortunately, owning property as “joint tenants” can seriously affect the taxation of any subsequent sale of the property after the death of one spouse. This is because the U.S. Internal Revenue Code provides special treatment for property owned by a married couple as “community property,” but not for similar property owned as “joint tenants.”
Special Tax Benefit for “Community Property”
When someone dies, his or her heirs are treated as if they purchased the deceased person’s property for its fair market value on the date of death. However, if the deceased person owned only a one-half interest as a “joint tenant,” only that one-half interest receives this treatment (called an “adjusted basis”).
Thus, if a married couple, Richard and Joan, buy a house as “joint tenants” for $400,000, the IRS considers that each paid $200,000 for a one-half interest. If Richard later dies, Joan automatically owns the entire house, and Richard’s one half share of the house is revalued as of the date of his death. If the house was worth $1,500,000 when Richard died, then Joan is treated as if she paid $950,000 for the house — computed by adding her share of the purchase price ($200,000), to the value of Richard share when he died ($750,000).
In contrast, the IRS treats “community property” as if it were owned completely by the deceased spouse, in applying this special “adjusted basis” rule. (For other purposes, such as computing estate taxes, only one-half of the value of community property is counted.) Therefore, if Richard and Joan bought their house as “community property” for $400,000, and Richard later died, leaving his share to Joan, the entire house would be assigned a new “basis” at current fair market value.
The result is that if Joan decides to sell the “joint tenancy” house for $1,500,000 shortly after Richard’s death, she would realize a taxable capital gain of $550,000 (the $1,500,000 sale price minus her $950,000 “adjusted basis,” computed two paragraphs above).

HOW WILL MY PROPERTY BE TRANSFERRED AT MY DEATH?
Transfer of your property on your death is controlled by the law of the State where you live, except that procedures for transferring real property (land) located in another State will be governed by the law of the State where the land is located. In California there are four different ways that property can pass to beneficiaries or heirs, depending on how your property is “titled”.
1. JOINT OWNERSHIP WITH SURVIVORSHIP RIGHTS: If property is titled as “as joint tenants,” or as “community property with rights of survivorship,” the property will automatically pass to the joint owner upon your death. No probate will be necessary; instead only a death certificate and perhaps an Affidavit of Death will be required. Any Will you may leave has no effect on property held in joint ownership with survivorship rights. Do not add someone to title to your property as a joint owner as an estate planning device without first discussing it with an attorney. A joint owner’s creditors may be able to reach the asset prior to your death; and joint tenancy ownership may reduce income tax “stepped up basis” benefits that would otherwise be available to your joint owner if they received the property from you via a different avenue. When the second joint owner dies, probate may be required if no further estate planning is completed.
2. BENEFICIARY DESIGNATION: You are allowed to sign forms designating beneficiaries for certain property, usually retirement accounts, life insurance, and bank accounts. There is also a new “Transfer on Death Deed” in California for putting a beneficiary on real property. The property will automatically pass to the designated beneficiary upon your death. No probate is necessary for property having a designated beneficiary; instead only a death certificate and completion of a Claim form. Any Will you may leave has no effect on property passing to a designated beneficiary. If you have young children, you may want to name a custodian for them in the beneficiary designation: for example, “John Doe, son, but if he is under the age of 18 then to Jane Doe as Custodian for John Doe until he attains age 18 under the California Uniform Transfers To Minors Act.” You may select any age between age 18 and 25 as a Custodianship ending age.

If the same house were owned as “community property,” however, she would recognize no capital gain, because her “adjusted basis” would be the same as the sale price.
Of course, no tax will be due from the sale of the former “joint tenancy” home if the seller quickly bought another home at the same or higher price. Also, the surviving spouse might avoid or reduce the capital-gains tax even if the house were owned as “joint tenancy,” if she can still use the once-in-a-lifetime $500,000 exclusion.
Drawbacks of “Community Property”
The chief drawback of “community property,” as a form of legal title, is that it does not provide automatic transfer to the survivor at death. Instead, the survivor must petition the court for a “spousal property” order, or initiate a probate proceeding. In California, it is not currently possible to own property as “community property” while also providing for an automatic right of survivorship.
However, to capture the best of both situations, it is possible to transfer property into a “living trust” (thus avoiding any probate court proceedings) while also retaining its character as “community property” (thus obtaining a full “adjusted basis”).
It is possible to file a spousal property petition (or initiate probate) and include “joint tenancy” property in the petition, arguing that it was community property all along. However, this uncertain procedure eliminates the benefit of the joint tenancy form of title, which is the automatic transfer of title at death.
Another drawback of “community property” ownership is that the entire property becomes liable for the debts of either spouse. In addition, “community property” will usually be equally divided in case of divorce, while “joint tenancy” property can be traced to separate-property sources to permit unequal division.
But Beware of Declining-Value Property
The special “adjusted basis” rule usually works so that couples who own property as “community property” are better off than couples who own property as “joint tenants,” because most property increases in value over time.
However, in the recent California real estate market, this general rule hasn’t always been true. If Richard and Joan bought their home in 1989 for $400,000, it is possible that the current fair market value might be only $350,000.

However, each spouse has the right to dispose of/leave their ownership right in the property to an heir in their will.
Community Property With Right Of Survivorship
This form of vesting title for a house or property owned together by spouses or domestic partners has one additional benefit: the right to survivorship. What that means is that when a husband and wife, for example, hold community property with right of survivorship and one of them dies, their remaining interest in the property does not pass to their descendants but remains with the living spouse. Sometimes, spouses or domestic partners vest title as community property with right of survivorship because of tax advantages it offers.
According to the California Civil Code, joint tenancy is a form of vesting title to two or more persons with equal shares and interests. None of them have to be married or domestic partners, and they’re subject to the right of survivorship in the surviving joint tenant(s). So when one of these two or more joint tenants dies, title to the property automatically and immediately vests in the name of the surviving tenant(s). With joint tenancy, the title must be acquired for all of these parties at the same time and by the same conveyance, with the document expressly declaring their intention to create a joint tenancy estate.
Tenancy In Common
This form of vesting title to a property allows for two or more co-owners just like joint tenancy. However, with tenancy in common they are allowed fractional –or unequal – ownership, so they are owed that same proportion in income or profit it generates, as well as expenses. There are also no rights to survivorship, so if one tenant dies, the title does not automatically go to the remaining tenants, but can be vested to the deceased person’s heirs. Each individual tenant may also sell/lease, or will their share of the property as they wish.
In California, you may also hold title to your house or property in a trust. A trust is an arrangement where the legal title to your property is transferred by a grantor to a person called a trustee, who holds and manages it according to the best interests of the beneficiaries. For that reason, a trust usually doesn’t hold title in its own name, but title is vested to the trustee, while the trust still holds legal title and rights.

If you are a married couple without a living trust, the manner in which you take title to your home can be critical. The three common ways for a married couple to title their home are explained below.
Joint tenancy is a form of ownership that includes a “right of survivorship.” At the first spouse’s death, his or her interest passes to the surviving spouse by operation of law. In other words, the property passes without probate administration, and passes to the surviving spouse irrespective of the terms of the deceased spouse’s will. While this is a convenient and inexpensive method of passing real estate to a surviving spouse, joint tenancies can have negative tax consequences. Upon the death of the first spouse, only the deceased spouse’s interest in the joint tenancy receives a “step-up” in basis for capital gains tax purposes. For a married couple that has owned a home in the Bay Area for decades, this can result in increased capital gains taxes if the surviving spouse sells the residence.
California utilizes the community property system for property owned by married couples. If an asset is community property, then each spouse owns one-half of that asset. The general presumption is that property acquired during marriage, and the income earned from that property, is community property. Unlike property held in joint tenancy, each spouse has testamentary control over their one-half interest in the community property, which means that the property will pass according to the terms of the deceased spouse’s will. There is no right of survivorship and the property may be subject to probate administration. Holding property as community property is advantageous from a tax standpoint because upon the death of the first spouse the deceased spouse’s one-half interest and the surviving spouse’s one-half interest in the property receive a step-up in basis.
Community property with right of survivorship combines the ease of administration provided by a joint tenancy with the tax advantages of community property. It allows the surviving spouse to avoid probate with respect to jointly-held assets while at the same time obtaining the step-up in basis afforded to community property. Upon the death of the first spouse, the deceased spouse’s property passes to the surviving spouse by right of survivorship, without administration. In addition, both the deceased spouse’s one-half interest and the surviving spouse’s one-half interest in the community property receive a step-up in basis. For married couples without a living trust, this is often the preferred manner of taking title.

The method of titling the ownership of property in California and elsewhere is generally an integral aspect of proper estate planning. By configuring the title to assets in designated ways during the life of the owner(s), estate planning can assure certain outcomes automatically on the death of an owner. The simplest form of ownership is where one individual owns the property in his/her name alone. If the asset is real estate, the single ownership model is called "fee simple" ownership, which represents the highest degree of unfettered ownership in real property.
Assets owned as joint tenants with the right of survivorship represent ownership by the joint owners. For inheritance purposes, a deceased owner's share is automatically passed to the surviving joint tenant by operation of law. Assets titled this way do not pass through the decedent's estate but are automatically owned by the survivor. Assets owned individually in fee simple will pass to the decedent's heirs and must go through the decedent's estate at death.
Ownership by tenants in common represents separate shares owned by each of the tenants. Thus, if there are three tenants in common owners of a parcel of real estate, the death of one tenant will pass that tenant's ownership interest onto that owner's heirs. The share of a deceased tenant in common will have to be reported by decedent's estate and treated as an estate asset.
When an individual or married couple meet with an estate planning attorney to set up an estate plan, the attorney will explain and discuss the impact of the various ways of titling assets. Title to certain assets may be changed to conform to the owners' wishes for the most expedient way of transferring title at death. In some cases, title to an asset or assets will go into a living trust, which generally is a way of passing assets at death without going through the decedent's estate. In California and elsewhere, the issues to evaluate are usually too complex to justify do-it-yourself estate planning, and the matter should therefore be jointly undertaken in cooperation with an experienced estate planning attorney.
Source: paulsvalleydailydemocrat.com, "How to title your property", Dan Barney, Oct. 25, 2017

For example, if four joint tenants own a house and one of them dies, each of the three remaining joint tenants ends up with a one-third share of the property. This is called the right of survivorship.
But tenants in common have no rights of survivorship. Unless the deceased individual's will specifies that his or her interest in the property is to be divided among the surviving owners, a deceased tenant in common's interest belongs to his or her estate.
Consider meeting with an estate planning lawyer to learn more about the differences between joint tenants and tenants in common with respect to survivorship.

If my mom died in California and left a living will that indicates my brother & I are to get everything and split it 50/50, what entitlement does her husband of the last 9 years have?
Also, if she has a mortgage that is more than the worth of the house what happens if we foreclose? She has some money in another account, is that then used against the house?
2 Answers from Attorneys
Sorry for your loss.
Did your mother have a Will or a Living Trust? A living will is a document which states someone's wishes regarding medical care.
Your step-father has a right to his half of any community property assets. In regards to your mother's half of the community property and her separate property, if your mother and step-father married after the Will or Trust were executed and the marriage is not mentioned in the document, then he has a partial claim on the assets of your mother's estate as an omitted spouse. However, if your step-father is mentioned in the documents, then he may not have a claim except for any community property claim he could make.
The exposure of the other assets to the mortgage depends on the type of mortgage - recourse or non-recourse.
You need to talk to an attorney. The property would be subject to any recorded deed of trust which was security for a loan, so if it is in default, the lender (bank) can still foreclose on the property. Recourse/ nonrecourse has nothing to do with the issue. If you are an heir, you don't foreclose, you worry about getting foreclosed on.
If your mother died with a husband (meaning she was not divorced from him at the time),) then he would have rights to his half of any community property, and may be able to make additional claims as a pretermitted heir.
There are a lot of issues here, that need to be discussed in person.

The form and manner in which title to real property is held can have a substantial impact on your rights with regard to your property.
Unmarried sole owners of property will hold title as follows: "John Doe, a single man." If married, title will be held: "Jane Doe, a married woman as her sole and separate property." Sole owners can dispose of the entire property in any manner without restriction (i.e., by sale, will, gift, etc.).
If property is co-owned (meaning two or more owners), the parties rights are determined by the manner in which title is held. Co-owners can hold title as "tenants-in-common", "joint tenants", "community property", or "community property with the right of survivorship".
Co-owners who hold title as "tenants-in-common" each will own undivided interests, which may or may not be equal in quantity or duration. For example, John can own 60% of a parcel of land, while his friend Mike owns the remaining 40%, though each is equally entitled to possession of the entire parcel. Each party is entitled to their share of any income and must bear their proportionate share of the expenses. Each co-owner may unilaterally sell, lease, gift or will his or her interest and the new owner will become a tenant-in-common with the previous owner.
Co-owners can also be joint tenants, however the joint tenancy must be expressly stated in the deed and the interests must be equal in every regard (e.g., how acquired, quantity, and duration). The most notable feature of a joint tenancy is that the co-owners have the right of survivorship, meaning that when one joint tenant dies, title to the property is automatically conveyed to the surviving joint tenant(s). As such, joint tenancy property cannot be disposed of by will or trust. If one joint tenant transfers his interest, the joint tenancy is broken, and the new owner becomes a tenant in common with the other owners (who remain joint tenants as between themselves).
For the above methods of holding title, a business entity (i.e., a corporation, partnership, or LLC) or a trust may be the named owner instead of an individual.
"As community property" is a manner of holding title to property by a husband and wife during their marriage. In California, real property conveyed to a married man or woman is presumed to be community property, unless otherwise stated.

When two or more people own a home as a joint tenancy, each individual owns a share (or interest) of the entire property. Joint tenants must obtain equal shares of the property with the same deed, at the same time. The terms of a joint tenancy (which differs from a tenancy in common) are laid out in the deed, title, or other legally binding property ownership document. Below are answers to the most frequently asked questions about joint tenancy.
What is joint tenancy with rights of survivorship?
Joint Tenancy ownership is where two or more people hold title to an asset. Joint tenancy with rights of survivorship (JT/WROS) features a right of survivorship. The term "right of survivorship" means that upon the death of one joint owner, title passes by "operation of law" to the surviving owner who receives sole ownership of the asset. It is a type of ownership that will not be controlled by either your will or your trust.
Can joint tenancy property pass to unintended heirs?
Possibly, yes. Joint tenancy ownership does not provide protection for children when a surviving spouse remarries after the death of the first spouse. If a married couple owns all of their assets in joint tenancy and one spouse dies, all assets pass by operation of law to the surviving spouse.
There may be no protection for children if the surviving spouse remarries and places his/her assets in joint tenancy with a new spouse. For example, if the surviving spouse predeceases the new spouse, all property passes to the spouse, not to the children as their parents may have originally intended.
Does joint tenancy ownership avoid probate?
The answer is that joint tenancy ownership often only delays the probate process. Upon the death of the first joint tenant, title passes automatically to the surviving joint tenant, thereby avoiding the probate process on the first death. Let's look at the example of a married couple who owns all of their assets in joint tenancy.
On the death of the first spouse, there is no probate because ownership of the assets passes by operation of law to the surviving spouse. However, on the death of the surviving spouse, there will be a probate unless the surviving spouse creates a new joint tenancy or places his or her assets in a living trust.
Can joint tenancy create unintended gift and estate taxes?

Here are the general rules:
1) If Decedent was married and had no children, Decedent's surviving spouse inherits all Community Property.2)If Decedent died On or Before September 1, 1993, married and had children, Decedent's surviving spouse retains his/her one-half of the Community Property and the Decedent's children inherit the Decedent's one-half of the Community Property.3) If Decedent died After September 1, 1993, married and had only children of that marriage, Decedent's surviving spouse retains his/her one-half of the Community
Property and inherits the Decedent's remaining one-half of the Community Property. 4) If Decedent died After September 1, 1993, married and had children other than, or in addition to, the children with the surviving spouse, the surviving spouse retains his/her one-half of the Community Property and the Decedent's children inherit the Decedent's one-half of the Community Property.5)If Decedent was survived by children but no surviving spouse, the Decedent's children inherit all of Decedent's Property (see this in Separate Property Distribution Basics).
You've got your work cut out for you trying to sort out all the current ownership interests. Good luck.
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Estate Law Questions? Ask an Estate Lawyer.
Dear JACUSTOMER - If any property that is titled such as real estate or is held in a joint account such as a savings account has a stipulation that it is a survivorship account then upon the death of one of the parties the other party will inherit that property by virtue of the survivorship clause and it will pass outside of any probate. I'm not certain from your facts exactly what type of property you are referring to but in general a survival or survivorship clause allows the property to pass outside of probate directly to the survivor.
When the property is marital property in a community property state such as CA then it is community property with a survival clause.

By: B Stead
Many people own property with another person in a co-ownership arrangement. Spouses or partners typically own their residence together in joint names, family members; or friends may own a property together for investment.
An important issue to consider upfront when buying property are the consequences of when a co-owner dies. How the property is owned between people, that is, its tenancy, can give very different outcomes on death. Ideally these should be considered at the time of purchase.
Questions to ask include who can take a co-owner’s interest when they die? Would this be what they want to have happen? If not, can they state their intention in their will? Or is the property owned in a way that on death the interest automatically passes to the survivor/s outside of a will, as in joint tenancy? This article looks at tenancy issues.
Two types of co-ownership
Tenancy is about owning property with others as co-owners. There are two ways of co-owning property – joint tenants and tenants in common. The legal entitlements of these are different, with different outcomes for ownership interests on death.
Co-ownership of property in these ways is not restricted to real estate, but can apply to other forms of property, such as joint bank accounts and credit card accounts. So a question for co-owners is who will inherit their interest? Ideally this and other issues would be considered from the start, when choosing whether to co-own as a joint tenancy or tenancy in common, and aided by professional advice.
What follows is an outline of the key aspects of co-ownership in the context of succession and willmaking. Keep in mind that only property owned personally can form part of an estate, and so only this can be given away in a will.
An important attribute of joint tenancy is a right of survivorship. It means that when one co-owner dies, the survivor(s) automatically own the property by the operation of law. This occurs independently of a will (and hence the probate process).
When eventually there is a sole survivor, that person will own the whole property, and they may deal with it as they wish. So it is important for a sole survivor to revise their will to take this change into account. If not the statutory rules of intestacy apply, which may not lead to an undesirable outcome.
With tenants in common there is no right of survivorship.

Joint tenancy gives each joint tenant the right to use and enjoyment of the entire property, and upon the death of one joint tenant, the property vests automatically in the surviving joint tenant, without necessity of probate.
However, joint tenancy is an incorrect, even dangerous way of holding title to assets if you do not want to give up control of the assets until your death.
The draw backs to joint tenancy are:
- Loss of Control: Since each joint tenant can use or enjoy the joint tenancy property, you run the risk of your joint tenant using up or simply removing assets from joint tenancy accounts.
- Unwanted Partners: You run the risk of becoming partners with your joint tenant’s Trustee in Bankruptcy, or your joint tenant’s ex-spouse in a divorce, or your joint tenant’s creditor.
- Income Tax Disadvantages: If beneficiaries of your estate are your joint tenants, you are depriving them of a full step-up in basis by making them joint tenants. Married couples in community property states lose a full step-up in basis by holding title as joint tenants instead of as community property.
- Property acquired from a decedent gets a basis equal to the fair market value as of the date of death. This means that the $500,000.00 home which you purchased fifty years ago for $20,000.00 will, when it is inherited by your beneficiaries, have a new basis of $500,000.00. Your beneficiaries can then sell the home for $500,000.00 and realize no taxable gain. Joint tenants get a basis equal to their percentage of the original $20,000.00 and your percentage of the $500,000.00 basis, resulting in taxable gain upon sale of the home for $500,000.00.
In short, do not hold title as joint tenants if your real intent is to give up control upon death. A revocable trust will avoid probate without the pitfalls of joint tenancy.

How you own your home with your partner or spouse can have major implications for you when they die.
In the UK there are two ways in which you can buy a property or a piece of land with your partner,
spouse or another person(s).
It’s important to know the variation between the two as the implications, should one owner die, are significantly different and may not be what you expect or want.
Beneficial Joint Tenants
In this instance you and the other owner(s) own the property jointly. You do not have separate shares in the property.
This means you cannot do anything with the property without all the other owners agreeing, i.e. you cannot sell, re-mortgage or do anything else without everyone’s agreement.
You also CANNOT leave your ownership of the property to anyone in your Will.
When a beneficial joint tenant dies their interest automatically passes to the other owners, irrespective of any wishes left in the deceased persons will.
Tenants in Common
Here all the owners of the property own shares in it, owning the property jointly. It’s up to you how many shares you own.
In this instance you CAN give away, sell or mortgage your share. You can also bequeath your share of the property to whoever you like in your Will. If you die without a Will in place then the rules of intestacy will apply.
When a relationship breaks down
Many couples own the matrimonial home as Beneficial Joint Tenants, and whilst relations between the couple are fine, then it’s usually the wishes of each party, that should either person die, the property is left in its entirety to the remaining partner.
However when relations break down and either separation or divorce is looming then severing the beneficial joint tenancy may be a preferred course of action.
The reason for this is, if either party were to die following the breakdown of the relationship it may not be their wishes that the estranged partner become the sole owner of the shared property.
In this instance the Beneficial Joint Tenancy would be replaced with a Tenancy in Common. This will ensure that should either owner die the surviving one will NOT automatically inherit their share of the property.
If they made a Will then their share will go to whoever they have bequeathed it, If they die intestate then the rules of intestacy will apply.
If you would like more information about making or amending your Will, then please book a free consultation with one of our legal experts.

When there is no official trust instrument, a trust may still be found under certain circumstances in order to enforce agreements as to property and income of domestic partners:
Uniform Pre-Marital Agreement Act
This act has been adopted in 11 states (Alaska, California, Hawaii, Maine, Montana, North Carolina, North Dakota, Oregon, Rhode Island, Texas and Virginia). It provides legal guidelines for unmarried couples who wish to make agreements in anticipation of marriage regarding ownership, management and control of property; property disposition on separation, divorce and death; alimony; wills and life insurance beneficiaries. The statute expressly prohibits couples from including provisions concerning child support. Pre-marital agreements are permitted in states that haven't adopted this uniform statute, but are subject to different guidelines in those states.
Joint tenancy is a method by which people jointly hold title to property. All joint tenants own equal interests in the jointly owned property. When two or more persons expressly own property as joint tenants, and one owner dies, the remaining owner(s) automatically take over the share of the deceased person. This is termed the right of survivorship. For example, if two people own their house as joint tenants and one of them dies, the other person ends up owning the entire house, even if the deceased person attempted to give away her half of the house in her will.
In most states, one joint tenant may, on her own, end a joint tenancy by signing a new deed changing the way title is held; then, she is free to leave her portion of the property through her will. Because joint tenancy property isn't passed through a will and thus doesn't go through probate, joint tenancy is a popular technique to avoid the costs and delay often associated with the probate process.
Tenancy in Common
Tenancy in common is a way for any two or more people to hold title to property together. Each co-owner has an undivided interest in the property, which means that no owner holds a particular part of the property and all co-owners have the right to use all the property. Each owner is free to sell or give away his interest. On his death, his interest passes through his will or living trust, or by intestate succession if he had no will or living trust.
Tenancy in common differs from joint tenancy, where the property passes automatically to the surviving co-owners on one own's death, regardless of any will provision.

The type of ownership interest a property holder has in a piece of real estate affects her inherent legal rights. The way the owner received ownership of the property on the deed, the legal document used to transfer real estate, establishes the nature of her ownership. A joint tenancy is a common form of ownership in real estate, and each joint tenant has specific legal rights in regard to the property.
Equal and Undivided Ownership
Each joint tenant has equal and undivided legal ownership of the property. The equal and undivided ownership gives the joint tenants each the legal right to dispose of or keep his share of ownership interest in the property while the joint tenancy is in effect. No one joint tenant can ever have a larger share of ownership than the other joint tenants in the same property. All joint tenants must take title to, or ownership of, the property at the same time and in the same way, such as being the receivers on the same deed.
All joint tenants are legally vested in the property, meaning the ownership is fixed for the same period of time (usually the joint tenant's lifetime), and cannot be changed by any condition while in effect. A joint tenant's ownership rights end when the joint tenant dies or otherwise disposes of his ownership interest in the property, such as selling his interest to another person.
Right of Survivorship
The ownership interest of a joint tenant automatically passes to the other joint tenant or tenants upon death; this is commonly referred to as the "right of survivorship," according to the American Bar Association. Each remaining joint tenant still has the same ownership rights in the property and receives equal percentages of ownership from the deceased joint tenant's share. The heirs of a deceased joint tenant do not have any legal claim to the property.
- house image by qadro from Fotolia.com

This is a legal agreement between joint owners of property setting out how they own a property and in what shares.
If you own a property jointly with a partner, friends, family or associates, you can either own it as beneficial joint tenants or tenants in common. The terms have nothing to do with tenants in a landlord and tenant sense.
This means that you do not own a specific share and that if you die your interest will pass automatically to the other owner or owners ("right of survivorship"). Any provision in a Will leaving your share of the property to someone else will be ineffective.
A beneficial joint tenancy comes to an end if the property is transferred to one owner, if it is sold or if only one of the joint tenants remains alive. The joint tenancy can also be brought to an end voluntarily, for example where a new trust deed is entered into, or involuntarily, for example, where an owner becomes bankrupt, in which case the joint tenancy will become severed and the owners will become tenants in common.
A joint owner may sever the joint tenancy at any time by giving notice to the other owner/s. The property will then be held as tenants in common.
Divorce or separation does not result in an automatic severance of the joint tenancy, although the wording of a document filed or served within any proceedings may constitute a notice severing the joint tenancy.
If you own a property jointly as tenants in common, then you own a specific share of the equity in the property. On your death your share of the property passes into your estate to the beneficiary entitled under the terms of your Will or the rules of intestacy, if you have not made a Will. In your lifetime you can make a gift, sell or re-mortgage your share.
If you own a property as tenants in common, it is always advisable to record details of ownership in a Declaration of Trust. This helps to ensure that the joint owners are clear about the specific shares they own, the contributions that have been made to the purchase price, the amount that each party is to pay towards the mortgage (if there is one), how the proceeds should be divided on sale and how to resolve disputes, such as what should happen if one owner wants to sell and another does not.
If you own a property as joint tenants, although there is a presumption that you own the property in equal shares, that presumption can be rebutted by either express evidence, such as a trust deed, or by the parties’ conduct.

Estate Law Articles
8 Dangers of Owning Property in Joint Tenancy
“Joint Tenancy with Right of Survivorship” means that each person has equal access to the property. When one owner dies, that person’s share immediately passes to the other owner(s) in equal shares, without going through probate. We’ve all been told that Joint Tenancy is a simple and inexpensive way to avoid probate, and this is sometimes true. But the tax and legal problems of Joint Tenancy ownership can be mindboggling. The dangers of Joint Tenancy include the following:
Danger #1: Only Delays Probate. When either joint tenant dies, the survivor – usually a spouse or a child – immediately becomes the owner of the entire property. But when the survivor dies, the property still must go through probate. Joint Tenancy doesn’t avoid probate; it simply delays it.
Danger #2: Two Probates When Joint Tenants Die Together. If both of the joint tenants die at the same time, such as in a car accident, there will be two probate administrations, one for the share of each joint tenant in the Joint Tenancy property as well as any other property they each may own.
Danger #3: Unintentional Disinheriting. When blended families are involved, with children from previous marriages, here’s what could happen: the husband dies and the wife becomes the owner of the property. When the wife dies, the property goes to her children, leaving nothing for the husband’s children.
Danger #4: Taxes. When you place a non-spouse on your property as a joint tenant, you are making a disposition of property and capital gains taxes may be due and owing in the year of the transfer into joint tenancy and you may be creating future taxes if the new joint owner already has a principal residence.
Danger #5: Right to Sell or Encumber. Joint Tenancy makes it more difficult to sell or mortgage property because it requires the agreement of both parties, which may not be easy to get.
Danger #6: Financial Problems. If either owner of Joint Tenancy property fails to pay income taxes, the Canada Revenue Agency can place a tax lien on the property. If either owner files for bankruptcy, the trustee in bankruptcy may be able to sell the property.
Danger #7: Court Judgments.

If you title your home or bank account with another person as joint tenants, the law is clear that the surviving owner automatically takes title upon the first owner’s death without probate. Sounds great and is the right choice is some cases. This way of titling assets often works well with spouses but there are several cases when this is simply the wrong way to handle things.
The first point to make is that many people assume that their will or trust governs all their assets. The will, for example, might say that upon my death all my assets go to my children in equal shares. This will, however, will not control a joint bank account where you name one of your children as joint owner. This is commonly done with the logic that this child has easy access to the account to pay bills and they can just take care of things right away after death and not wait around for probate. The concern is that this way of titling means that the joint owner is entitled to all the money and doesn’t have to share with his or her siblings. Even if that child wants to split the account, if he or she has creditors or is in a divorce proceeding that account might be frozen and used to pay off the child’s creditors. From a more practical standpoint, its really hard to know after a parent dies if that account was really supposed to be split or maybe one child is intentionally getting more as they were the one who handled all the finances or helped take care of the parent before death. A combination of powers of attorney and beneficiary designations can accomplish the same goal (easy access and no probate) without any fear of foul play or just plain uncertainty.
Another common problem with joint tenancy occurs when a parent deeds land to all the children prior to death. This could be done to avoid probate or potential medical assistance issues. The issue is how is that deed drafted. If the deed conveys title to all the children as joint tenants, if one of the children dies before the land is sold, their share simply terminates and the remaining children now own the land. In other words, that child’s spouse or children will not share in the sale proceeds. That may be the intent but often the parent really wants each child or their heirs to receive their share. In that case, the deed should be clear that the children are receiving title as tenants in common and not as joint tenants.

A type of joint ownership of property, where each owner is called a “joint tenant” and each owns the whole of the asset, rather than a distinct fractional share. When a joint tenant dies, the asset in question does not pass to his personal representatives as part of his estate. Instead, the asset (usually land, but can be a joint bank account or shares, for example) automatically passes to the surviving joint tenant(s).
It is one of two main types of joint ownership of property. The other is called a tenancy in common. It is possible to sever a joint tenancy and create a tenancy in common.
For these purposes, the word “tenancy” simply means ownership.
An immovable property held in joint tenancy has certain advantages. Where a joint owner dies, no further vesting of title in the other co-owner is required.
However, a joint tenancy, by its very nature, also has some serious disadvantages. For example, where one co-owner for good reasons, does not wish the survivor to take the whole of the property. To achieve that, he has to sever the right of survivorship by severing the joint tenancy. The effect of the severance is to create a tenancy in common under which each co-owner holds a distinct share in the property.

Joint ownership is a popular way to leave property to loved ones; however, it is not always the best way. There are advantages and disadvantages to joint ownership in an estate plan. In general, the primary advantage of owning property jointly is that your property passes automatically to the surviving joint tenant(s) when you die and probate is avoided. One disadvantage to joint ownership is that the decision is irrevocable unless you get the permission of the joint tenant(s). Another is that, in many instances, you have made a taxable gift to that person or those persons.
An exception to the rule of joint ownership is when adding a joint tenant to a bank account. Adding a person's name to your account is not an irrevocable decision indicating that you made a gift to that person. It is, however, a decision to take seriously, as the person can withdraw all of the money from your account. It is important to check with the financial institution to determine the rights created when you add a person as a joint tenant to a bank account.
See Prepare Your Estate Plan Case Study 3: The Dangers of Making Someone a Co-owner of a Bank Account as Joint Tenants with Right of Survivorship
4.c. Types of Joint Ownership
Several types of joint ownership are described below:
Community Property: The laws of some states specify that most property acquired by either spouse during a marriage is held equally by husband and wife as community property. Laws in a community property state provide that any property purchased or salary earned by a married couple during the course of their marriage is owned equally by each.
Joint Tenancy with Rights of Survivorship: This type of joint ownership states that, upon death, an owner’s share goes to the other joint owner. Joint tenancy is created when two or more persons purchase or are given property at the same time. Each joint tenant owns an undivided interest in the whole property, and each has the right to possess, occupy, enjoy, use, or rent the property. The right of survivorship means that upon the death of one of the joint tenants, by law, the property automatically belongs to the surviving tenant and does not pass through probate. Therefore, upon the death of a tenant, property held by joint tenancy with rights of survivorship cannot be transferred or given away by a will.

Joint Tenancy - An undivided interest in the property, taken by two or more joint tenants. The interests must be equal, accruing under the same conveyance, and beginning at the same time. Upon the death of a joint tenant, the interest passes to the surviving joint tenants, rather than to the heirs of the deceased.
Tenancy in Common - A form of ownership whereby each owner holds an undivided interest in the property. The interests need not be equal, and, in the event of the death of one of the owners, no right of survivorship in the other owners exists.

What is Joint Tenancy?
When one joint tenant dies, their interest passes outside the Will to the surviving tenants, thus not forming part of the deceased’s estate; this is referred to as “right of survivorship”. A house can be owned with other persons in joint tenancy. Each owner is called a joint tenant.
Uses of Joint Tenancy
Avoid probate fees:
Probate fees are assessed on the value of a person’s property within BC that passes to the personal representative.
Such property must be disclosed in the probate application as passing under the Will, and is usually considered part of the estate
Probate fees are approximately 1.4% of the value of the probateable assets
Probate fees can be avoided by planning your estate so that certain properties pass outside your will upon your death
The right of survivorship aspect when registering a property under joint tenancy lets you avoid probate fees
Avoid the Wills Variation Act
Under the BC Wills Variation Act (WVA), a person who is not satisfied with his or her gift under the Will of a deceased spouse or parent can ask the court to give them a greater share in the estate.
Usually only the estate that passes under a will is vulnerable to a WVA claim.
Since properties registered in joint tenancy passes outside the Will, such properties will not be exposed to the WVA.
Avoid costs and delays associated with obtaining probate
The process associated with obtaining probate of a Will may take between 3-6 months, and costs between $1,500 and $3,500, not including probate fees.
The transferring of a real property to a beneficiary also requires filing with the Land Title Office and, in some cases, property taxes must be paid.
Transmitting property in joint tenancy requires only one meeting and a simple filing with the Land Title office; costing between $200 and $300, and avoids the additional cost of probate fees and property transfer tax.
Problems with Joint Tenancy
1.Loss of control
Under a property registered in joint tenancy, joint tenants lose the ability to individually act and make certain decisions regarding property.
E.g. loss of the ability to sell or mortgage the property without the agreement of the co-owners.
2.Exposure to creditors of co-owners
If one of the joint tenants falls experiences financial difficulties, their creditors may try to seize their share of the interest in the property.

- Without a will, typically the probate court distributes the property of the deceased among his next of kin.
Out of state probate responsibilities
Out of state residents with California probate responsibilities should consider hiring legal counsel from a probate lawyer who has experienced navigating the probate process in the state where the responsibilities reside. The advice of an experienced probate lawyer will help make the execution of the steps involved in the probate process as efficient as possible, and will be able to offer individualized direction based on your families specific needs.
Seven Ways To Avoid Probate
You can reduce the size of your estate, and shorten the probate process if you give gifts of property or cash to your heirs. Keep in mind the gift tax, which currently applies to gifts of $15,000 or more. Your Heritage Law, LLP probate lawyer in Mission Viejo, CA, can help you plan such gifts.
Create Living Trusts
Living trusts are probably the most well-known means of avoiding probate. You can put your home, vehicles, financial accounts and more inside a living trust. You just have to remember to re-title everything in the name of the trust, instead of leaving it in your name. That way, when you die, your successor trustee takes over administering the trust when you die and can transfer ownership to the beneficiaries you named. Living trusts are easy to set up with the help of a probate lawyer in Mission Viejo, CA.
Establish Joint Ownership Regarding Real Estate
There are three types of joint ownership when it comes to real estate:
- Joint tenancy with rights of survivorship: The title to the property automatically passes to the other owner when one passes away.
- Tenancy by the entireties: This may be available in your state; this is the same as joint tenancy with rights of survivorship, but it only applies to married couples.
- Community property:. This is only available if you are married and live or own property in one of the states that allows for this..
There is a drawback to joint ownership. The other owner has just as much right as you to do whatever he wishes with the property.
Form Joint Ownership With Survivorship for Other Property
Any property you own can be titled with joint ownership with survivorship. Some examples include cars, boats, financial accounts and securities. Your heritage Law, LLP probate lawyer in Mission Viejo, CA, can help you set up these joint ownership accounts.

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You may be considering buying Los Angeles real estate and may have luckily have identified a home and gone into escrow. Now you need to decide how you are going to take title, especially if you are taking it jointly. There are various way to take title, including:
- A man or woman who is not married
Example: John Doe, a single man.
- An Unmarried Man/Woman
A man or woman, who having been married, is legally divorced.
Example: John Doe, an unmarried man.
- A Married Man/Woman, as His/Her Sole and Separate Property
When a married man or woman wishes to acquire title as their sole and separate property, the spouse must consent and relinquish all right, title and interest in the property by deed or other written agreement.
Example: John Doe, a married man, as his sole and separate property.
- Community Property
Property acquired by husband and wife, or either during marriage, other than by gift, bequest, devise, descent or as the separate property of either is presumed community property.
Example: John Doe and Mary Doe, husband and wife, as community property.
Example: John Doe and Mary Doe, husband and wife.
Example: John Doe, a married man
- Joint Tenancy
Joint and equal interests in land owned by two or more individuals created under a single instrument with right of survivorship.
Example: John Doe and Mary Doe, husband and wife, as joint tenants.
- Tenancy in Common
Under tenancy in common, the co-owners own undivided interests; but unlike joint tenancy, these interests need not be equal in quantity and may arise at different times. There is no right of survivorship; each tenant owns an interest, which on his or her death vests in his or her heirs or devisee.
Example: John Doe, a single man, as to an undivided 3/4th interest, and George Smith, a single man as to an undivided 1/4th interest, as tenants in common.
Title to real property in California may be held in trust. The trustee of the trust holds title pursuant to the terms of the trust for the benefit of the trustor/beneficiary.
You are advised to consult your accountant or attorney when deciding how to take Title as there a significant legal consequences involved in the way you hold Title.

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This arrangement is defined by the following characteristics: The tenancy must be conferred by the same deed or grant
Joint tenants in equity If an equitable joint tenancy exists, the beneficial interest of any joint tenant (proprietor) will pass on death to the surviving tenant. The last survivor will then hold the land as sole legal and beneficial owner and, as a result, the trust will come to an end. Joint tenancy (or more formally ‘joint tenants with a right of survivorship’) is the most common way for legally married spouses to hold ownership of their house in Ontario. If one joint tenant dies, they cease to be an owner, and the remaining joint tenant continues as the owner. Survivorship rights are automatic in the case of tenants by the entirety, and they're provided for by deed in cases of joint tenancy. 3 A surviving spouse or co-owner immediately becomes the sole owner of the property when the other spouse or co-owner dies. Se hela listan på legalzoom.com
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Sole Ownership and Joint Tenancy.
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Under joint tenancy, both partners jointly own the whole property, while with tenants-in-common each own a specified share. However, if beneficial ownership has initially been structured in the form of joint tenants, such ownership structure is not fixed for all time. A change from joint tenants to tenants in common can easily be achieved by the act of severance ; this simply involves a joint tenant writing to the other joint tenant(s) giving notice that he/she wishes to hold his/her interest as a tenant in common. 2021-03-14 · Joint tenancy with rights of survivorship (JTWROS) is a type of account that is owned by at least two people.

The terms of either a joint tenancy or tenancy in common are outlined in the dee title, or other legally binding property ownership document. The default ownership for married couples is joint tenancy in some states, and tenancy in common in others (see Top Reasons for Unmarried Partners to Own Property as Joint Tenants).
A joint tenancy can be broken if one of the co-owners transfers or sells his or her interest to another person, thus changing the ownership arrangement to a tenancy in common for all parties. A tenancy in common can be broken if one of the following occurs: 1. One or more co-tenants buys out the others 2. The property is sold and the proceeds distributed amongst the owners 3. A partition action is file which allows an heir to sell his or her stake. At this point, former tenants in common can choose to enter into a joint tenancy via written instrument if they so desire. This type of holding title is most common between husbands and wives and among family members in general since it allows the property to pass to the survivors without going through probate (saving time and money). One of the main differences between the two types of shared ownership is what happens to the property when one of the owners dies.
When a property is owned by joint tenants, the interest of a deceased owner gets transferred to the remaining surviving owners. For example, if three joint tenants own a house and one of them dies, the two remaining tenants each obtain a one-half share of the property. Tenants in common have no rights of survivorship.
This is called the right of survivorship. Decisions relating to real estate have huge financial outcomes. Before deciding how to share ownership over what is likely the largest investment in your life, you may benefit from some professional advice. Consider meeting with a local real estate attorneybefore you make such important decisions. A co-tenant can, with the consent of the landlor transfer their share of the tenancy to another person.
The Tenants’ rights manual is produced by the Tenants’ Union of NSW especially for tenants and people who work with tenants – tenants’ advocates, community legal centre workers, and other community workers – on issues to do with renting. The lessor’s disclosure statement is given by the lessor (landlord) to the lessee (tenant). It contains important information about the shop, the lease and the tenant’s financial obligations.

Assets Involved with Probate
Probate isn’t involved or necessary for every asset that someone owns when he or she dies, but it is regularly used for the following assets:
- Assets that were held in only the deceased’s name
- Half of each asset that was registered with his or her spouse as community property
- That portion of any asset that belonged to the deceased that he or she held as a registered tenant in common with other people
- Any assets, including such things as jewelry, art, furniture or the like, that are not registered
If the total value at the time of death of the deceased’s assets is less than $100,000 (not including motor vehicles or certain other assets), probate is not necessary under California law. The assets that are not subject to probate receive a simplified procedure for their transfer.
Assets Excluded from Probate
Not everything is subject to probate. Although probate may be required for a portion of someone’s estate, the following assets can avoid the probate process:
- Assets that are held in joint tenancy
- Assets that are held in a living trust
- Assets where a beneficiary is named, such as IRA benefits or life insurance policies
- Assets held in a bank or credit union where the deceased was named as a trustee for another person
- Assets that were registered in the person’s name that are “payable on death” or “transfer on death” to another person
- Assets registered by a married couple as community property with the right of survivorship
- All assets that go to a surviving spouse, including any assets the person who died owned separately in his or her name but were left in the will or by intestate succession to the surviving spouse
In California, there is a simplified legal process called a “spousal confirmation hearing” where a petition is filed with the court. A notice is sent to certain interested parties, and the court assigns the assets to the surviving spouse unless there is an objection. Only a husband and wife can take advantage of this process.
Example: To illustrate this process, if John Smith has $200,000 of stock held separately from his wife, Ann, she can go through this spousal confirmation process—if he has a will that leaves everything to her. Her advantages are saving on the fixed fee required by probate as well as savings in time.

married for 40+ years but separated in 2004 my name was removed from deed but we are still legally married. he died with no will
If he died intestate (with no will), it would appear a probate is necessary.
Frank W. Chen has been licensed to practice law in California since 1988. The information presented here is general in nature and is not intended, nor should be construed, as legal advice for a particular case. This Avvo.com posting does not create any attorney-client relationship with the author. For specific advice about your particular situation, please consult with your own attorney.
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Divorce / Separation Lawyer
The complexity of your matter is compounded by the fact that you were still legally married, living apart for years, and for some reason you have signed off or took your name off title in 2004. Something must have motivated you to take your name off the title. You have an unusual blend, and I think you are gong to have to speak with two attorneys with different expertise, or find an attorney that has dealt with a lot of probate as well as family law issues. You have complex facts, but with a long term marriage there will be enough Court of Appeal and California Supreme Court decisions available to make it certainly possible in obtaining a defined answer once the research is completed.
If you have found this information helpful, please let the attorney know by marking best answer. Thank you. This participating Attorney does not warrant any information provided, nor are we creating an Attorney-Client relationship by providing said information to you on this site. Nothing contained herein is intended to constitute, offer, induce, promise, or contract of any kind. The content provided is presented as a courtesy to be used only for informational purposes and is not represented to be error free. The Law Offices of John N. Kitta makes no representations or warranties of any kind with respect to its answer to inquiries, and such representations and warranties are being expressly disclaimed. Given limited facts, we are attempting to share relevant information concerning this area of the law as a public service.
I don't think this is complex, assuming there are no other folks who will challenge you. Just go to a local probate lawyer who can get this processed.

“Holding Title” is the way in which you take ownership of your Real Estate property. There are many different ways to take and hold title in California and it is best to be informed on all of them so that you as a buyer can make an informed decision that fits your needs best.
The graphic below outlines the different ways of “Holding Title” in the State of California.
Lets break this all down shall we?
How you take ownership of your real property will allow you to have a say in who has the legal authority to sign documents and obtain rights associated with the property. Some of these rights include: property taxes, income taxes, inheritability/gift taxes, and transferability of title.
This means that there is only one person on the deed of the property. When this person dies, this means that the property will go through a process called probate through the court to determine who will gain ownership of this property after the death of this individual or sole entity.
One way to avoid the process of probate would be through the Transfer on Death Deed. This is a way in California to assign ownership of your property to your heirs after your death.
This means that you and your co-owner(s) all have equal ownership of the property. This means that you own half, and your co-owner owns the other half equally.
Under this form of vesting, an owner is allowed to sell their portion of the property while alive, but is not allowed to will their stake of the property due to the Right Of Survivorship
The Right of Survivorship means that once you die the remaining co-owner(s) will assume your stake of ownership. This allows them to avoid the dreaded probate process.
Tenancy in Common
This occurs when you have multiple co-owners with unequal ownership of the property.
When referencing the infographic to the right, Person Left (person on the left side) may own 75% of the property while Person Right owns 25% of the real property.
In this situation each owner has the ability to transfer, will or restrict their percentage of their ownership in the property.
You do not receive the Right of Survivorship with this form of vesting thus subjecting to probate.
Married couples only are subject to this form of vesting. When you get married, your spouse owns equal ownership unless otherwise stated in writing and signed by both parties.

What's the Difference Between Joint Tenants with Survivorship and Tenants in Common?
When two or more people own property like a home, either as joint tenants or tenants in common, each individual owns a share (or interest) of the entire property. This means that specific areas of the property are not owned by any one individual, but rather shared as a whole. While joint tenants with survivorship are similar to tenants in common in many ways, particularly the right of possession with respect to the property, there are some important differences with respect to what happens when a co-owner dies.
This article covers the basic differences between joint tenants and tenants in common, and how survivorship is treated by each type of tenant classification. See FindLaw's Probate section, including Avoiding the Probate Process, to learn more.
While none of the owners may claim to own a specific part of the property, tenants in common may have different ownership interests. For instance, Tenant A and Tenant B may each own 25 percent of the home, while Tenant C owns 50 percent of the property as a whole. Tenants in common also may be created at different times; so an individual may obtain an interest in the property years after the other individuals have entered into a tenancy in common ownership.
Joint tenants, on the other hand, must obtain equal shares of the property with the same deed at the same time. The terms of either a joint tenancy or tenancy in common are spelled out in the deed, title, or other legally binding property ownership documents. The default ownership characterization for married couples is joint tenancy in some states, and tenancy in common in others (see Top 10 Reasons for Unmarried Partners to Own Property as Joint Tenants).
A joint tenancy is broken if one of the tenants sells his or her interest to another person, thus changing the ownership arrangement to a tenancy in common for all parties. However, a tenancy in common may end if one or more co-tenant buys out the others; if the property is sold and the proceeds distributed equally among the owners; or if a partition action is filed, which allows an heir inheriting the property to sell his or her stake.
Right of Survivorship
One of the main differences between the two types of shared ownership is what happens to the property when one of the owners dies. When a property is owned by joint tenants with survivorship, the interest of a deceased owner automatically gets transferred to the remaining surviving owners.

Were this to happen, it would convert a JTWROS into a tenancy in common.
Tenancy by entirety is a JTWROS between spouses. However, neither spouse can transfer or sell their interest without the consent of the other spouse. Tenancy by entirety is better protection from the creditors against one spouse than a JTWROS. That is because the property isn’t owned by either the husband or the wife but by the marital entity.
Community property. This is recognized in Alaska, Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington and Wisconsin. Community property provides that married couples own an equal and undivided interest in all properties accumulated while they are married. Each spouse owns half of the value of the community property, and either spouse can transfer or sell one half of the property. When one spouse dies, one-half of the value of the community property is included in the probate estate and gross estate of the deceased spouse.
Talk with your estate planning attorney about how to title your assets, to ensure that your estate plan works the way you want it to. If you need to make changes, don’t wait—delaying this important step can lead to a wide range of estate problems for your heirs. One of the many differences between Legacy Counsellors, P.C. and other estate planning firms, is that we work with you, often doing the bulk of the work, to retitle your assets. We make sure that your assets align with your estate plan so that your estate plan is completely effective.
Reference: Reflector.com (December 2, 2018) “Joint-ownership property titling can avoid costly probate process”

Joint Property Ownership Pitfalls and Solutions
Joint Property Ownership Pitfalls and Solutions
Our law firm has worked on a couple of cases lately involving joint property ownership; that is, property owned by a group of several individuals. Owning a piece of land or real estate with a group of individuals or family members can lead to many problems, a few of which we will discuss here.
What Happens to Real Estate When a Person Dies?
In Tennessee, real property typically passes outside of Probate in accordance with the publicly recorded property documents in the County where the property is located. A person can also plan for the disposition of real property in a Will or Trust. If you die owning real property in your sole name, though, it can cause significant problems for your Beneficiaries that can be avoided by proper planning.
In both cases I mentioned above, the group of individuals came into joint property ownership because of intestate succession (i.e., dying without a Will). You may think that you do not need a Will because your property will pass to your heirs regardless. However, there are many problems and burdens that your heirs will face if property passes to them through intestate succession. Here’s what can happen if a landowner dies without a Will:
- Land may pass to heirs who do not wish to be landowners.
- Land may pass to heirs who do not know that they are now landowners (i.e. lost heirs).
- Land may pass to heirs who are not prepared for the responsibility of owning real estate (i.e. paying real estate taxes, maintaining insurance, upkeep of the property)
- If there is a mortgage, payments may be required very soon after the death of the original owner and before any inherited owner has a chance to determine how to address the new ownership – i.e. sell the property, allow it to be foreclosed upon, etc.
- The title to the property will be unclear and extra effort will be required to determine all legal owners in a joint property ownership situation. It can be very difficult to locate heirs and to determine with certainty who all owns a piece of property, especially if some of the original heirs have died, or if the family isn’t in close contact or is spread across the country. A title search may be required, and title searches can be expensive.

See generally Shiba v. Shiba, 2008 UT 33, ¶ 17, 186 P.3d 329 (holding that both parties to a joint tenancy “hold a concurrent ownership in the same property with a right of survivorship, i.e., each [tenant] is afforded the eventuality of a full ownership interest, conditioned upon the tenancy remaining unsevered, and one out-living the other” (citation and internal quotation marks omitted)); see also In re Estate of Ashton, 898 P.2d 824, 826 (Utah Ct.App.1995) (reversing the district court's inclusion of property in the deceased's estate that, at the time of his death, was held in joint tenancy with full right of survivorship). If, on the other hand, Bates's attempt to convey the Property to the Bullocks severed the joint tenancy, he and Harris held the Property as tenants in common at the time of Harris's death. See Utah Code Ann. § 57–1–5(5)(a) (LexisNexis Supp.2012) (“[I]f a joint tenant makes a bona fide conveyance of the joint tenant's interest in property held in joint tenancy to himself or herself or another, the joint tenancy is severed and converted into a tenancy in common.”). When a tenant in common dies, that tenant's interest in the property passes to her heirs, rather than to the other tenants in common. See Webster v. Lehmer, 742 P.2d 1203, 1205 (Utah 1987) (explaining that the deed created a tenancy in common, not a joint tenancy, and that therefore, “when [the tenant in common] died intestate in 1975, her interest, instead of passing solely to [the other tenant in common], passed by the rules of intestate succession to [the deceased tenant's] two daughters”). Thus, if the Writing severed the joint tenancy, it was converted to a tenancy in common and Harris's interest passed to her heirs. See Shiba, 2008 UT 33, ¶ 17.
¶ 12 When a joint tenant conveys “his interest therein by a valid deed,” he “ ‘severs and terminates the joint tenancy by the creation of a tenancy in common.’ “ Id.

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Purchasing property is a significant investment and it is becoming increasingly popular (in the current Sydney market it is often necessary!) for two people to purchase a property together. In estate law, joint tenancy is a special form of ownership by two or more persons of the same property.
The individuals, who are called joint tenants , share equal ownership of the property and have the equal, undivided right to keep or dispose of the property. If two or more people acquire a property together, it can be either as tenants in common or as joint tenants. If a tenant in common dies, their interest in the property is an asset of their deceased estate. Joint tenancy creates a Right of Survivorship.
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There is nothing sacred about a
For example, when property is owned as a joint tenancy, each tenant must receive permission from the other before starting construction, altering or selling the
3 Dec 2020 Upon the demise of one of the joint tenants, the surviving tenant takes sole ownership of the whole property. This is regardless of whether the
Buying a property with a friend or partner? Find out the differences between the two types of joint ownership: joint tenancy
In a joint tenancy, if one person dies, the other person automatically becomes the owner of the whole property.
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Under joint tenancy, each of the co-owners together own the whole interest in the flat. P-059, Business vs. Adventure or Concern in the Nature of Trade Relating to Sales of Real Property; P-088 Sale of Single Sites in a Residential Trailer Park; P-109, Transfer of Farmland by a Farmer, Holding Sole Title, to One or More Related Persons and Themselves as Joint Tenants; P- 121, Sale of Land Related to a Residential Complex, P-183 Input Tax Credits on Farmland Acquired in Joint Tenancy. Joint Tenancy with rights of survivorship is similar to Tenancy in Common, meaning you both own an equal part.
companies. These are companies with sole rights which have performed – and continue to perform. – important over decreased in 2005 compared to 2004. which is a jointly financed project with the other tenants, central government agencies. submit a joint notification to the Council, the Commission, the ESRB and EBA. derivatives and on cash markets for the sole purpose of hedging positions on a similar institution; | (v) | a credit institution which is wholly owned by one of the (b) | exposures to a tenant under a property leasing transaction concerning abstract of title, gravationsbevis, kopi av atkomstdokument. accede to an business on joint account, metaaffär, metaforretning. business exclusive right, prerogativ, enerett.

If your minor child is designated as a beneficiary without a specified custodian, it would be necessary for a Court to appoint a Guardian for that minor child’s estate before payment would be made if you die while the child is a minor. If the beneficiary dies before you or at the same time, then probate may required if no further estate planning is completed.
3. PROPERTY HELD IN A TRUST: A revocable living trust is an estate planning device that allows you to name someone (called a Successor Trustee) to follow instructions you write into the trust for distributing the property that you placed into the trust after your death. A trust is created by a signed document, usually written for you by an attorney, and then you transfer your assets so title is held by the Trustee of your Trust. A Trust is not probated; and the transfer to beneficiaries costs less and is usually completed in less time than Probate. A trust also provides instructions for the management of the property that you have transferred to the trust in the event of your incapacity, thus avoiding the expense of Conservatorship proceedings. A trust usually has alternate beneficiaries, so that there is not a problem if your beneficiary dies before you.
4. PROBATABLE ESTATE: Any property that is not held in one of the 3 ways listed above (or if the named beneficiary or joint tenant dies before you) is part of your estate that could be subject to probate. If you leave a Will, this property is transferred as specified in your Will. If you don’t leave a Will, this property passes to your nearest relative(s) as specified in State law (called the Intestate Law). It would only pass to the State of CA if you don’t leave a Will and none of your relatives can be identified or located. If the total value of all your property passing via this avenue #4 is less than $150,000, no Probate will be necessary; instead only a Probate Code Affidavit and death certificate will be required. If the total value of your entire property passing via this avenue is more than $150,000, then formal Probate will be required. Probate requires a court case, and is costly.
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Joint Tenancy remains a popular form of property ownership as people tend to elect this form of ownership to avoid probate. Many of my clients stated that when they bought a house, they chose to create a joint tenancy without really going any further as to what that entails. Joint tenancy with right of survivorship means that each person owns the entire asset (undivided equal share), not just part of it. When one owner passes away, the person's share immediately passes to the other owners in equal shares, without going through probate. We’ve all been told that joint tenancy can be a simple and inexpensive way to avoid probate, and this is sometimes true.
But careful consideration should be made for the potential tax consequences and other problems of joint tenancy ownership. Here are some of the disadvantages of joint tenancy which far outweigh the advantages:
Joint Tenancy does have its advantages, such as:
Before placing your property in a certain type of ownership, I highly recommend becoming familiar with all types of property ownership and taking into consideration your objectives and consequences to your heirs.
About the Author
Christine Chung, Esq.

Joint tenancy is a form of co-ownership. If, under a joint tenancy, one owner dies, then his or his interest automatically transfers to the surviving owner(s). This is called the “right of survivorship”.
Colorado Law outlines how to properly document the death of a joint tenant. CRS § 38-31-102 requires the survivor record two documents: 1) a death certificate or verification of death document and 2) a supplementary affidavit.
Typically, the funeral home involved will help you order the death certificate. If a death certificate was already ordered and now can’t be located, you’ll have to apply for another death certificate through the state’s vital records office. This may take some time. If you’re working under a deadline (say, for example, a real estate transaction) make sure to start this process early.
In a supplementary affidavit, an individual who knows the decedent swears that he or she is the same person named in the last vesting deed (under which the joint tenancy was created). Earlier versions of the statute required that the individual signing the supplemental affidavit have no interest in the underlying property. This is no longer the case.
If you’re unable to locate or order a death certificate, then you can file another affidavit signed by two individuals who can swear to 1) the date and death of the decedent and 2) that the decedent is the same person named in the last vesting deed. Unlike the supplementary affidavit, those signing cannot have an interest in the underlying property.
If you’re the surviving owner under a joint tenancy, make sure to properly document your survivorship rights. Contact us here or call 720-588-9830 to talk to a real estate attorney.

What Is the Law for When Land Is Jointly Owned & One of the Owners Dies? – This manner, for example, that if you and your sibling are tenants.
Or extra human beings very own property as joint tenants with right of survivorship, the final proprietors inherit the possession.
We have a house.
Lives. Then, there is an entirely separate association beneath which this son pays a sum to each of his siblings, probably in reputation of the truth that they will not.
Even now, the story continues to haunt the area – literally – with tales of the siblings ghosts persisting.
Three Luxton youngsters – all of whom inherited a 3rd of it – ran the farm.
I am like eight, 10 years older than my siblings who came after me.
If we have been anticipating him to die in order that we could inherit his assets, we were wasting our time because he had nothing.
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I said I was willing to get a money supervisor and set up a retirement account in each of our names. I’ve constantly worked, even.
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However, I am going to assume you didn't give all the facts and that there ARE heirs that will challenge your right to the property since when you separated the property became his separate property, which without a will passes to his heirs, according to CA laws, So you need to talk to a local probate attorney who can advise you, AFTER disclosing all the facts.
If the value of the property is not that much because there is a high loan on the property for ex, it may not be worth the trouble or expense in any event.
The foregoing is for informational purposes only and may not be relied on as attorney-client advice.

Tenancy-In-Common: Ownership of property in which, upon death, each owner’s share goes to his/her heirs or beneficiaries is known as Tenancy-In-Common. It is created when two or more persons own property together but also own separate titles to the property. Property owners may or may not own the same percentage of the property. For example, one may own 25% while the other owns 75%. Each owner may do as he or she wishes with his or her interest in the property, such as give it away, sell it, or mortgage it without the consent or knowledge of the other owner. With tenancy-in-common, upon death, one person’s share passes as provided in his or her will or trust. Probate or other consequences are possible.
Tenancy-By-The-Entirety: This form of joint tenancy between a husband and wife is valid in a few states. Tenancy-by-the-entirety provides extra protections to real property owned by a married couple. One spouse owning property as tenants-by-the-entirety cannot mortgage, transfer, or otherwise deal with the property in any way that would affect the rights of the other spouse without the latter’s consent. When one spouse dies, the other still owns the entire property.
There are some important things to consider about joint tenancy:
5. A Will: Who Needs One?
A will is an estate-planning tool that serves as your set of instructions regarding who gets your property and resources when you die. At a minimum, everyone needs a simple will. It is the document that most people use for transferring their property, and it is often the choice of young families and of others whose situations involve neither complex tax planning nor resource management for incapacitated family members. After death, the will is settled through the probate process.
To appreciate the terminology used in a will, select Prepare Your Estate Plan Case Study 4: How Much Will Each Heir Inherit? Remember to access the Financial Security Glossary for an understanding of the terms used.
Why have a will?
5.a. What Constitutes a Valid Will?
Factors that must be present in a valid will vary from state to state, so it is wise to check your own state’s requirements. Certain elements are often necessary:
5.b. Types of Wills
There are several types of wills:
Attested wills are the most common type of wills.

One negative of this type of ownership is that the property will only pass to the other joint tenant, so the Estate of the first to die loses any equity to pass on to other individuals. In addition, potential gift tax issues may arise since the Grantor is “gifting” rights to the property to the person they are creating a joint tenancy with.
- Own the Property in a Limited Liability Corporation. Ask a business organization attorney about property ownership through an LLC. The rights of the members will depend on the structure of the LLC. Creating an LLC requires maintenance of paperwork to the State to keep the LLC active which will be required if the LLC wants to sell the property.
- Put the Property Into a Living Trust. This is achieved by conveying the property to a Trustee on behalf of a Trust. (A Trust itself can’t own property; rather it must be an individual Trustee on behalf of the Trust.) The property will then be maintained and distributed in accordance with the Trust Agreement. A Living Trust allows the Grantor to make changes during his or her lifetime (therefore keeping control and autonomy) but also allows for the streamlining of management and an easy transition of the property upon the death of the original Grantor. The successor Trustee can sell or manage the property outside of Probate, and depending on the Trust terms, without the input of or disruption to the Beneficiaries.
Tennessee does not offer this, but some states allow the use of a Beneficiary Deed to clarify how a property is to pass upon the owner’s death. Essentially, a Beneficiary Deed lets a person name a beneficiary and only takes effect upon the death of the owner. Ask your Estate Planning Attorney about the availability of Beneficiary Deeds if you own property in multiple states.
Right to Partition
If you are tied up in joint property ownership, or if you own a piece of property with a group of individuals or family members and you want to end the relationship and go your separate way, you can. In Tennessee, you have the legal right to what is called “partition.” Speak with a civil litigation attorney about filing a partition lawsuit. In this kind of lawsuit, you ask the judge to partition the property, either “in kind” or “by sale.”
Need Help with a Property Ownership Issue?
Have questions about joint property ownership or other real estate issues?

They do not understand the significance of joint ownership. The issue is common in the following areas, provided as examples:
(a) Real Estate: Often, a husband and wife will own real estate as joint tenants with rights of survivorship. If one party dies, the surviving party receives the property regardless of what the Will provides. This is common and generally acceptable. However, if this is not your desire you should change the ownership of the property to tenants in common or other form of ownership. If you own real estate as tenants in common, then you may designate who will receive your share of the property at your death. This issue can be a problem when uninformed persons take title to real estate as joint tenants with rights of survivorship but really intended to leave their share to, for example, children of a prior marriage.
(b) Bank Accounts/Certificates of Deposit, Stock, Retirement Plans, IRA's and other type Property: The same ownership as real estate can be made of these investments. In fact, many Banks routinely place Bank accounts and Certificates of Deposit in the joint tenant with right of survivorship form of ownership if more than one person is on the account or CD, without advising you of the consequence of same. In situations where the persons are husband and wife and there is no issue or concern over divorce or children from previous marriages, this may be the best course of action. However, with divorce on the rise, premarital agreements and multiple marriages being common, the parties may be doing something that was not their intent. Another common problematic situation is where a parent has more than one child but only one child resides in the hometown of the parent. The parent may place the name of the child who resides there on all accounts, CD's and other investments for convenience reasons and establish a joint tenant with right of survivorship situation without realizing that only that child will be entitled to those assets at the parent's death. Simply put, you should be aware when you acquire an asset or investment exactly how it is titled.
For additional information, see the Law Summary and Information and Preview links in the search results for this form. A Definitions section is also linked on the Information and Preview page.

Joint Tenant with a tenant in commongreenspun.com : LUSENET : Repossession : One Thread
My ex and I own a property as Joint Tenants. If he releases his portion to someone else, they become a Tenant in Common. How does that affect my interest? If I die, do the Tenant in Common own the property solely? What about my children? If the Tenant in Common dies, where do I stand?
-- Lestine (email@example.com), August 11, 2001
go see a solicitor/attorney... this isn't on the menu at this website.
-- (firstname.lastname@example.org), August 14, 2001.
Firstly he cannot release 'his'half as you are joint and severeal and the mortgage will be written as you both as joint tenants.This cannot be changed without changing the terms of the mortgage deed which will require your consent.Lenders do not like tenants in common arrangement and it tis doubtful assuming there is a mortgage that it can go ahead.Yes as my friens says see a solicitor
-- roger watts (email@example.com), August 15, 2001.

Common Ways to Hold Title
HOW YOU TAKE TITLE - ADVANTAGES AND LIMITATIONS:
Title to real property in California may be held by individuals, either in Sole Ownership or
in Co-Ownership. Co-Ownership of real property occurs when title is held by two or more
persons. There are several variations as to how title may be held in each type of ownership.
The following brief summaries reference seven of the more common examples of Sole Ownership
- A man or woman who is not married.
Example: John Doe, a single man.
- An Unmarried Man/Woman:
A man or woman, who having been married, is legally divorced.
Example: John Doe, an unmarried man.
- A Married Man/Woman, as His/Her Sole and Separate Property:
When a married man or woman wishes to acquire title as their sole and separate property,
the spouse must consent and relinquish all right, title and interest in the property by
deed or other written agreement.
Example: John Doe, a married man, as his sole and separate property.
- Community Property:
Property acquired by husband and wife, or either during marriage, other than by gift,
bequest, devise, descent or as the separate property of either is presumed community
Example: John Doe and Mary Doe, husband and wife, as community property.
Example: John Doe and Mary Doe, husband and wife.
Example: John Doe, a married man.
- Joint Tenancy:
Joint and equal interests in land owned by two or more individuals created under a
single instrument with right of survivorship.
Example: John Doe and Mary Doe, husband and wife, as joint tenants.
- Tenancy in Common:
Under tenancy in common, the co-owners own undivided interests; but unlike joint tenancy,
these interests need not be equal in quantity and may arise at different times. There is
no right of survivorship; each tenant owns an interest, which on his or her death vests
in his or her heirs or devisee.
Example: John Doe, a single man, as to an undivided ¾ ths interest, and George Smith,
a single man as to an undivided 1/4th interest, as tenants in common.
Title to real property in California may be held in trust. The trustee of the trust holds
title pursuant to the terms of the trust for the benefit of the trustor/beneficiary.

An example of this would be owning your home under a right of survivorship where the property would automatically go to the spouse that survives.
What is a transfer on a death deed?
A relatively new development over the past few years is the allowance of a transfer on death deed to help and donors avoid having their family need to go through probate after their death to transfer property. Specifically, the transfer on death deed would allow your spouse to name and a beneficiary who will receive any property described in the deed after your spouse has passed away. Keep in mind that the transfer on death deed must be recorded with the deed records in their home county before your spouse passing away.
As long as you are living then you can continue to live in your home after a transfer on death deed is executed. For example, your spouse could continue to live in the home even after the transfer on death deed is executed. Your spouse would still be the full owner of the home which means that you all would still need to pay taxes and maintain the home. Nothing is stopping you from selling the house, either. However, keep in mind that if the home is sold then whoever is listed as the beneficiary in the transfer on death deed would receive nothing at the time of your spouse’s death.
An important thing to keep in mind is that the transfer on the death deed will trump your will. for example, if your will states that you are vacation home goes to your daughter and the transfer of death deed names your nephew as a beneficiary in the lake home then your lake home will go to your nephew regardless of which one of the documents came into being the first period you would then be able to transfer title to the lake home without having to go through probate first period any property that is classified as real estate regardless of whether or not it has a mortgage can be transferred at the death when you or your spouse draft and record a properly executed transfer on death deed.
How do pre-marital agreements work in this setting?
If you are planning on getting married and have prepared a prenuptial agreement that says that certain property will remain your separately owned property even after you get married then you have created a prenuptial or premarital agreement. Unless they will states that someone else will get that property upon your passing and the property mentioned in your prenuptial agreement will not go to your surviving spouse.
What is a joint tenancy?

One of the simplest probate-avoidance methods is to hold real property in joint tenancy. The primary element of joint tenancy is that the surviving owner of a property held in joint tenancy automatically inherits the property share held by the deceased owner. However, the putting of property in joint tenancy can have important gift and other tax consequences.
When dealing with very specific assets such as bank accounts or stocks, an individual can use Pay-on-death designations to avoid probate. Basically, you name a beneficiary for that asset and your beneficiary quickly receives those assets with no probate. The upside is that these pay-on-death designations can be easily set up and there is usually no additional cost, but you do not want to set these up when it’s possible that the beneficiaries will still be minors at the time that they inherit. In that instance, it’s better to have a revocable trust drafted. That way the funds can be held “in trust” until the minors reach a certain age, usually the age of eighteen.
Even in the event that an individual does not have a revocable trust or other similar probate-avoidance method, the state of California does have two simplified probate procedures. The first is the spousal or community property petition. By this method, a surviving spouse can more easily obtain the portion of the deceased spouses’ property that was left to him or her. A simplified probate form needs to be filed with the court, but the process is much quicker than a full probate. Also, the advantage of this method is that there is no dollar limit on how much property can be transferred by this method.
A second method in California allows the transfer of personal property worth less than $100,000 by affidavit. The purpose of this affidavit procedure is to allow beneficiaries of a decedent with a relatively small estate to inherit and obtain the cash and other assets without having to incur the time and expense of a full-blown probate. Basically, the beneficiary or beneficiaries must sign a simple form called the “Affidavit for Collection of Personal Property” and present it to the individual or entity that is in possession of the assets. The people or organizations holding the property must then promptly release the assets to the beneficiaries.
In conclusion, it is clear that probate is a process that is best avoided in most instances. Fortunately, there are methods to avoid probate.

Property Ownership – Joint Tenancy vs Tenants in Common
How do you own your property?
One of the important questions I regularly ask clients when they are purchasing their property is how they want to own their property joint tenants or tenants in common. Then that glazed look comes over their faces and I know instantly they are unfamiliar with those phrases. Usually we have a quick tutorial in Property 101 and ownership types and what it means on death and whether they have children to previous relationships.
What’s all the fuss about then? Well it really does matter how you own your biggest asset – your home. If you hold the property as joint tenants, you cannot will your share and the survivor of the owners gets the property outright. For those with children together of that relationship they are likely to want joint tenants. On death it’s a simple transmission of the property title to the surviving party – easy!
Not so easy when the partners or spouses have children from previous relationships. They have different obligations to their own children that the other partner or spouse do not. They are likely to want to ensure their share of the property goes to their children – fair enough. In that situation, we recommend they hold the property as tenants in common. Here’s the catch – they have to update their wills to allow the surviving partner or spouse to live in the property either for a period or time or for their lifetime. Otherwise, the Executors of the deceased partner or spouse can take steps to sell the property to meet the obligations to the beneficiaries of the deceased party. It can really complicate matters and create more anxiety for the surviving party.
Tenants in common can also be a good ownership option when you are getting older and have no family trust. If one dies and the surviving party needed or might need residential care then, any asset assessment would only be on the surviving party’s share, not the estate.
Talk to the team at Law4You about the options when you are next buying your property and take the opportunity to update your wills.

Individuals often look at joint tenancy as an avenue to avoid probate or to have financial assistance. However, when a parent places a child on as a joint tenant on their real estate, stocks or other investments, they are often unaware that they have made a gift of one-half of the value of the property. If that value exceeds $10,000 in one year, the gift is a taxable gift and the parent must file a gift tax return.
As stated above, property held in joint tenancy passes by operation of law to the surviving joint owner. Although title passes to the surviving joint owner, the value of the owner's interest in the property is included in his/her estate for federal estate tax purposes. Therefore, an owner's family may pay substantial federal estate taxes on property they do not receive.
So joint tenancy doesn't provide a step-up in basis?
Basis is generally defined as what you paid for an asset (cost basis). If you paid $1,000 for 10 shares of stock, your basis in the stock is $1,000. Different rules apply for inherited and gifted property. If you inherit property, your basis is the value of the property as of the date of death of the previous owner. If you inherited 10 shares of stock and the shares were valued at $50,000 as of the date of death of the previous owner, your basis in the shares would be $50,000. When you inherit property, you receive a 100% step-up in basis.
However, if you receive a gift of property, you receive what is called a carry-over basis. In other words, if you received 10 shares of stock as a gift and the basis of the previous owner was $10,000, your basis in the shares would be $10,000. The basis "carries" over to you regardless of what the shares are worth at the time the gift is made.
Therefore, it may be better to leave your heirs appreciated property rather than make an outright gift to them during your lifetime. With inherited property, your heirs will be able to take advantage of the step-up in basis when they proceed to sell the property.
Questions About Joint Tenancy? Talk to a Local Attorney
Joint tenancies and other forms of joint property ownership must be carefully planned. Defects can result in unexpected outcomes and the loss of important rights.

Hi and welcome to Just Answer.I am Ray and I will be the expert assisting you tonight.Can you tell me here if you are on the deed or is it in the mother's name??Did she have a will?
Hi. She did not have a will and I am on The Deed.
Then if you were joint owners here you will need to make application for probate.Her share here passe under the California laws of intestacy.
Here are those laws for reference.
Once probate is opened here it would be possible to add your name to the note assuming you are the legal heir under the laws of intestacy.If there are other heirs they would have to assign you their share of mother's joint interest.
I am not sure why only mother's name was placed on the note.
The up side would be that you would have right to walk away from the house since you are not on the note yet.
I am assuming that you want to keep the house.
If I am on the deed alone with my mother could my brothers put a stake on the home even though I have been paying for the home?
You may also want to review the deed here to see if there was a right of survivorship that would award you her interest.
Yes he could have an interest in the mother's share.The court would have to resolve the credit you may get for payments here.
I am on the note and I see my name clear on it. The mortgage has jumped from bank to bank since 2006 and it must of fell off somewhere.
Mother's share unless there was a right of survivorship passes under the laws of intestacy since she did not have a will.It is unfortunate that she did not will it to you.
And maybe your brother would waive his right to inherit here.
You are going to need a local probate lawyer here to file for probate.
Lawyer referral for you.
I know this can all be kind of overwhelming.
In filing for brobate would my brothers need to be notified?
When you make application for probate they do notify the heirs here.So yes they would be notified.
Here you would have to resolve the mother's interest or the court might order a sale.You of course would get your half and your share of mother's too.Or you can buy out the other siblings interest or they may waive right to inherit.
Here is more information about the probate process.
Expect probate to take at least a year here from start to finish.

Many people asking the question of whether it makes sense to add someone to their home are considering joint tenancy because of its right of survivorship, which avoids probate.
John C. Grier, managing partner at the San Diego law firm of Mathews Grier Damasco, outlined for me in an interview and in a really good article on his firm’s Web site (www.mbglawoffices.com; click on the link for trusts and estate planning) the pitfalls of placing property in joint tenancy. Of course, you should check with your own legal or tax adviser regarding your particular situation, since the laws of each state may differ, Grier said.
So, what are the pitfalls of joint tenancy?
You could trigger a gift tax for yourself or your estate. The federal government assesses taxes (or a reduction in the available estate tax exemption) against any gift over $11,000 made to any one person in a calendar year, Grier said. If you add someone to your property, it may be viewed as a gift of one-half the value of the property.
You may unintentionally create a taxable profit for your heir. A transfer of real property on death receives a stepped-up value to current market value, for capital gains purposes, Grier said. Simply put, suppose a couple bought their home for $20,000 in 1955. The home is now worth $300,000. An adult daughter inheriting the property after the couple’s death receives the home with a fair market value of $300,000. If it is immediately sold, there is no tax because there has been no gain, Grier said. But if the daughter’s name is put on the home, she doesn’t get the full stepped-up value.
Property held jointly is subject to claims by creditors of any of the owners. For example, suppose a couple adds their son’s name to their home. The son has a business that fails and the IRS comes after him for unpaid taxes. Because the son is part owner of his parents’ home, the IRS tries to force the sale of the house. The couple will get a share of the proceeds but they would no longer have their home to live in.
Sadly, the above example is a true story. Fortunately, the couple was able to keep their house but not before spending $2,500 in legal fees as well as paying the son’s tax obligation of $75,000, Grier said.

As far as giving away one spouse’s interest in the property, that spouse’s rights to do so will depend on the form of ownership in which the couple owns the property. If the property is owned as joint tenants with rights of survivorship, when one spouse dies, his ownership interest will automatically pass to the surviving spouse, who will then be sole owner, regardless of what the deceased spouse’s will may have said. If the property is owned in tenancy by the entirety, the same is true. If, however, spouses own property as tenants in common, then each spouse could leave their half of the property to someone other than the other spouse. In the case of property for which there is no title or ownership document, generally the spouse who paid for the property is considered the owner. The same is true if the property was received by one spouse as a gift.

Q: My wife and I owned our house as joint tenants with rights of survivorship. When she died, I became the sole owner, and the deed was changed to reflect this.
Last year, my daughter insisted that I put one of my children’s names on the deed also, in case of my death. I put her name on it since she is the executor of my estate when I die.
My will specifies that â€œall of my tangible and intangible property of whatsoever kind is bequeathed to my four children in equal shares.â€ Hereâ€™s the problem: This daughter, whose name is on the title, wants to live in the house with her husband and two children when I die.
What method must she use to compensate the other three siblings to rightfully receive their share of my estate without selling the house outright since I want one of them to continue to live there?
A: Your intentions may be admirable, but if what you write is true, you have probably conferred upon your daughter future sole ownership in the property. She now co-owns the property with you and depending on how you hold title, she will either inherit all of the property or half plus a one-fourth share of the other half.
I’m sure this is not what you intended, and while your daughter may be entirely trustworthy, you should fix this situation immediately. Not only could there be problems dividing the property after you are gone (her share of the property will not be subject to disposition via your wishes) but you may have created an estate tax/gift tax situation for yourself now, and for her down the line.
Letâ€™s look at the immediate tax implications of putting her name on title: you may have inadvertently gifted her half the property to your daughter. This could cause a taxable situation in which gift taxes are owed. I encourage you to call your accountant or tax preparer immediately to see what, if anything, you owe to the government.
You may be able to undo this gift and instead create a trust in which the house is the sole asset. When you die, the beneficiaries of the trust (your four children or their heirs if they die before you do) would then inherit the house in equal shares.
At that time, depending on what the property is worth, your daughter can make an offer to her siblings for their shares of the property and buy them out. This would be the fairest thing to do.

Ownership and income tax: legal background: joint ownership - tenants in common
Property is held in the name of A and B. A and B are the legal owners.
In a tenancy in common, A and B are each entitled to a specific share in the property. The shares in which the property is owned may or may not be equal. For example A is entitled to 50% and B to 50%; or A is entitled to 75% and B to 25%. When property is held in this way, on the death of one tenant in common the deceased’s share does not pass to the surviving owner. It forms part of the deceased’s estate, and so passes to their successor under the terms of their will or the rules of intestacy.
Words of separation or ‘severance’ are likely to be used. These are words that indicate the property is to be held in shares, for example ‘equally’, ‘in equal shares’, ‘half and half’, ’50/50’, ‘one third/two thirds’, ‘60%/40%’.
Tenancy in common is the way that individuals who are not in a personal relationship are likely to own property. It would be unusual to find that they intended the survivorship rule to apply.

It goes without saying that you should make a Will or review any previous Will when jointly purchasing a property or severing a joint tenancy to ensure that your share of the property is left to your chosen beneficiary and for appropriate housing or financial provision to be made for your co-owning partner/s.

- Community Property
Community property is any property acquired during marriage; thus, it is part of the “community” of the marriage. Think about “community” as husband and wife. Each spouse owns an equal share, regardless of whose name is on the title.
This type of real estate ownership allows each owner to transfer or bequest their asset to a designated heir upon death, but not while alive and married.
For example, if George, a remarried man, wants to bequest his share of a community-estate (upon his death) to his ex-wife and children from his previous marriage, he can do that given that George lives in a state where community-estate is a legal form of real estate ownership.
However, if George wanted to transfer his share of the state while still alive, he’d need consent from his current wife.
The states where community property law applies are California, Washington, Wisconsin, Idaho, Texas, Arizona, New Mexico, Louisiana, Nevada, and Alaska.
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Changing your type of real estate ownership
You can change your form of real estate ownership from either:
- Tenants in common to joint tenants: for instance, if you get married and want to add your spouse with equal ownership.
- Joint tenants to tenants in common: for instance, if you divorce or separate from your spouse.
What Percentage of Ownership Does Each Owner have?
With joint tenancy and community property, by default, each owner gets an equal share. However, with tenancy in common, the share of ownership will depend on whatever the buyers agree to.
Tenancy in Common vs. Joint Tenancy
Tenancy in common and joint tenancy are both common types of real estate ownership in the marketplace. Although they both allow two or more parties to own property, there are a few significant differences.
While tenancy in common allows an owner to mortgage, sell, transfer, or gift their share of the property to anyone they choose, with joint tenancy, you need approval from the co-owner(s).
The biggest difference is the right of survivorship. With joint tenancy, if an owner dies, his or her share of the property goes to the remaining owner(s), whereas, with tenants in common, the property goes to the heirs or as directed on a will.
What Is the Type of Ownership of the matrimonial home?
Married couples and common-law partners typically own the matrimonial home as joint tenants.

Also, if Jonathan was driving and a lawsuit was brought about the accident, his entire estate could be subject to any subsequent legal action. During the probate process, it might be difficult to pay Martha’s medical bills.
Fortunately, no estate taxes apply when a spouse inherits assets. But just as probate has finished transferring assets to Martha, she dies, dropping the baton again and requiring another probate process.
During this second probate, assets are passed to the children, and all of the assets over $2 million are subject to 45% estate taxes. So the taxes on a $5 million estate would be $1.35 million. Even though the business is worth $5 million, Clark and his brother don’t have the money for the estate tax, and they are forced to sell rather than inherit the business. Clark must return to his dead end job as a reporter for a city newspaper.
Joint tenancy with rights of survivorship (JTWROS)
In a JTWROS arrangement, two or more people hold the baton, and each one has an equal share. One person can sell his or her share and pass their grip on the baton to someone else. They can also break off their piece of the baton and keep the piece. But if they die, their share is given to those still holding on. The last one holding the baton owns it outright.
JTWROS does not require probate, which would make the transition of ownership from Jonathan to Martha easy and straightforward. But it does not protect the estate from legal action. Nor does it help solve the estate tax problem for Clark.
Joint tenancy titling trumps a will. Even if you have been careful in your estate planning documents, if you are not equally purposeful and intentional in how you title your assets you can ruin your plan. Financial accounts that use POD (payable-on-death) or TOD (transfer-on-death) arrangements, if sloppily done, can also thwart all your best estate planning intentions.
Tenancy by the entirety (TBE)
Only persons married to each other can hold property jointly as tenants by the entirety. With TBE, each spouse holds the entire baton. They can’t sell their share and pass the grip to someone else because they don’t hold a piece of the baton separate from the other tenants’ pieces. And they cannot break off a piece of the baton and keep it for themselves.

The transfer of a home into joint tenancy with a person who does not live there may mean the loss of “principal residence” status for part of the property
The loss of principal residence status results in tax payable if there is a capital gain when the property is sold
Any transfer of property into the names of j0int co-owners may trigger tax consequences
4.Child inappropriately dealing with property
If a parents has more than one child and is registered jointly with only one of them, the child taking the property might not deal with it in accordance with the wishes of the deceased parent.
5.Child predeceasing parent
If several children are named as joint tenants with a parent and one predeceases the parent, the children of the deceased child will not inherit any share in the property because of the right of survivorship.
This may be inconsistent with the wishes of the deceased.
This may be avoided by letting the property pass under a Will.
6.Mortgaged property transferred into joint tenancy may void any mortgage insurance
7.The spouse of a co-owner may make a claim against the property
8.The court may set aside a transfer into joint tenancy
If a transfer into joint tenancy is an invalid “testamentary gift” not signed in accordance with the Wills Act, the court may set it aside.
In this unusual case, the property would fall back into the estate and probate fees may be payable and could be subject to claim under the Wills Variation Act.

If so, it would be preferable to own the property as “joint tenants” to avoid having the survivor’s basis in the property reduced to $350,000. (Instead, the basis would only be reduced halfway, to $375,000.)

If one of joint tenants dies, his interest will go to other owner
Under tenants-in-common, upon death of one of the owners, the interest in the property will devolve according to the will of the deceased
My mother, my former wife and I own a property jointly. The property has a loan against it which is in the names of all three of us. However, the loan was sanctioned on the basis of my salary documents as my mother and my former wife were unemployed. After divorce, my former wife wants to get her name removed from the loan account. For this purpose, the bank needs a gift or release deed. My former wife intends to give up her share in the property without any consideration. What shall be more viable—a release or gift deed? We were told that a gift deed will not be possible, and it will have to be a release deed. Also is stamp duty to be paid for both gift and release deeds?

It is possible to acquire or hold property as “community property” or as “community property with right of survivorship.” The additional language “with right of survivorship” ensures that the surviving spouse will receive title to the whole of the asset upon the death of the first spouse. Holding an asset as community property also creates a tax advantage, in that the surviving spouse will get a step up in basis on the asset to the date of death of the first spouse. In other words, the surviving spouse will not have to pay a capital gains tax on the increase in value from the date of purchase to the date of the first spouse’s death.
Separate Property. A married person may also hold property as his or her separate property. This includes property that was acquired prior to marriage, or property acquired during marriage by one spouse only as a gift or an inheritance. A spouse with separate property may make a gift of that property to the community by deeding or changing title of the asset to community property. If the spouse continues to hold the property as separate, upon death the spouse may will it to anyone he wishes; the surviving spouse does not have any legal right to it. However, if a spouse with separate property dies without a will, separate property will pass according to Nevada’s laws on intestate succession, and the surviving spouse will be entitled to a share of the property.
Joint Tenancy. Two persons, whether or not married, may hold property as joint tenants. Upon the death of one joint tenant, the surviving joint tenant becomes the owner of the whole of the property. In other words, the heirs of the first joint tenant to die do not inherit that person’s interest in the property; it passes by operation of law to the surviving joint tenant. For this reason, sometimes joint tenancy language also says “with right of survivorship.” For married couples, a partial step-up in basis is available if title is held in joint tenancy.
Couples should be aware of and sensitive to the manner in which they hold title. A change in how an asset is titled will change how the asset is distributed at death. If you have questions or concerns, you should contact a qualified Nevada attorney.
By: Sharon M. Parker, Esq.

Blanket Trust Deed
- One lien over more than one parcel.
- "Release Clause" needs to releases portion of the property.
a right of interest other than an owner or tenancy interest that limits its use or Value.
with Right of Survivorship
- 100% of the property upon the death of a spouse.
- Probate. No necessary to transfer title to suviving spouse.
How eqully share during their marriage. Unless it is considered: "Separate Property"
- May or May not include property acquired before marriage.
- Acquired by either during a marriage by gift or inheritance.
- -No will (1/3 spouse, 2/3 Children) or (1/2 and 1/2 if one children).
Tenacy in Partnership
Gral. Partneship: share all profit and loss. Passes to heirs but not in any particular property.
- Limited: Limited losses.
- a Limited partner does not share management responsabilities.
- - Right of Survivorship
- - Can not be willed
- - Title: Granted by same instrument.
- Time: At the same time.
- Interest: Equal interest
- Possession: Equal right to possess
When joint tenant dies, survivor acquire ownership. Free of any unsecured debts.
Tenancy in Common
- (Unity of Possession).
- - No survivorship
- - Equal interest in the property
- - Both has the right to occupy
- - Share income and expenses
- - Each may sell or transfer his/her interest separatly from the others.
- Sole ownership.
- Individual or Corporation
Estate at sufferance.
Tenancy at sufferance.
A lease remain after expiration without the Landlord's concent.
Notice to terminate.
Estate at will
- Rental that can be terminated by either lessor or lessee at any time.
- CA needs 3 days notice.
- No estate at will in CA
Estate from Period to Period
- A renewalbe agreement. Rental or Lease amount is fixed at an agreed to sum per week, month or year.
- Notice must be given. (Usually 30 days)
Estate for years
- (Tenancy for Fixed Term)
- Any from few days to 99 years.
- Notice to terminate is necessary.
- (Persona Property)
Less than Freehold Estate
- Both Tenant in a rented apartmenet and owners in their condos.

When more than one person owns a specific piece of property, that is a joint tenancy. Both personal property and real property can be owned in a joint tenancy although you hear about joint tenancies much more frequently regarding real property. You and your spouse can own property as joint tenants or as joint tenants with the right of survivorship. In a joint tenancy, if your spots were to die then their share of the property would pass to their heirs or two any person named in their will. In a joint tenancy with the right of survivorship when your spouse would die their share would go directly to you. These agreements are created in writing.
If your spouse had children who were not also your children then their half of the Community property does not automatically go to you when your spouse passes away under a writer survivorship situation. The law in Texas says that you and your spouse can agree in writing that all or part of your Community property will go to the surviving spouse when one of you dies. This is called a right of survivorship agreement. If you and your spouse had come to an agreement like this you would need to file it with the county court where you all live.
The beauty of this type of agreement is that it is a way that you and your spouse can ensure that all Community property contained in the agreement automatically goes to the other spouse without having to first go through probate. Bear in mind that this type of agreement is only important or necessary if you and your spouse have children from outside of the marriage. If you all have no children from outside of your marriage then this type of agreement would not be necessary.
In terms of jointly held bank accounts, there are two types. If all the parties to a jointly held bank account or living and it is set up under either your name or another person’s name then either of you can take money out of the account without getting permission from the other person. However, if the account is set up under both of your names then one person would need the permission of the other to access the money. In most marriages, jointly held bank accounts between you and your spouse would not require the permission of the other to obtain money.
One of the questions that estate planning attorneys frequently receive is regarding the benefits of a payable on death account. In terms of owning financial accounts, this is another method for you to do so. A payable on death account automatically passes to your spouse or another person upon your death.

If the deceased leaves both a spouse and a domestic partner each is entitled to an equal share of the property.
A Court may make a declaration that two persons were domestic partners on a particular date. Even if the deceased has children, if the estate is valued at $100,000.00 or less the spouse or domestic partner is entitled to the whole estate. If the estate is valued at more than $100,000.00 the spouse or domestic partner will be entitled to the sum of $100,000.00 and half of the balance of the estate, plus the personal belongings of the deceased. The children of the deceased are entitled to the balance of the estate in equal shares.
If the deceased and her/his spouse or domestic partner dies within twenty eight days of each other the estate is distributed as though there was no spouse or domestic partner. Where there is no surviving spouse or domestic partner but there are surviving children of the deceased, the children receive equal shares of the estate. This includes children who are adopted, but not a step-child. If a child has died leaving children (the deceased’s grandchildren) they will each receive an equal share of their parent’s share. Otherwise, the child’s share is shared equally among the other siblings. A person who has been adopted cannot share in her or his birth parent’s estate after the death of the birth parent. Every child whether born within or outside of a legal marriage, is entitled to share in the estate.
If a house is owned jointly by two people, and one dies, the house will automatically belong to the other person. This cannot be changed by a will. If an intestate person who owned a house in only their name is survived by a spouse and children, the spouse has the right to live in the house for three months and is also entitled to buy the house from the estate within that time. The spouse would have to buy from the children their share in the house (after considering the spouses entitlement to $100,000.00 from the estate if necessary) in order to continue to live in it. The 3 month period starts when the letters of administration are granted to the spouse or when proper notice is given to the spouse. If the spouse cannot afford to buy out the children’s share, they can apply to the court to postpone the sale of the house until the children have all turned 18.

Instead, each co-owner has a separate, undivided share in the property (although not in a physical sense), and may independently deal with it as they wish. If owned in their own name it will form part of their estate and they may choose who will inherit it through their will.
The graphics outlines how it works.
Combining joint tenancy under a tenancy in common
In a tenancy in common arrangement, two (or more) people may choose to own their particular share as joint tenants.
Changing a joint tenancy to a tenancy in common
The survivor’s rights apply as long as the property is owned as a joint tenancy. To change to a tenancy in common, the joint tenancy needs to be severed in the lifetime of the co-owners. Specific procedures are involved and specialist legal advice should be sought.
The graphic below extends the situation further to show what happens in each tenancy when there are three co-owners, and one dies.
A note on terminology – most people associate the words tenant and tenancy as referring to leasing or renting property. Their presence in joint tenancy and tenants in common are leftovers from feudal law concepts in the English law adopted into Australia.
The table below compares aspects of joint tenancy and tenancy in common.
|Joint Tenants||Tenants in common|
|Basis of co-ownership|
|No separation of ownership.Co-owners hold the property together as a whole. Ownership is not separated into identified shares. Important attributes of this tenancy are the right of survivorship (see below) and the requirement for all owners to meet four elements when acquiring the property, known in law as the four unities.The four unities are time, title, interest and possession. Basically all owners must have acquired the same type of interest at the same time, in the same transaction, to have equal rights to possess the whole property simultaneously. As a result a close legal relationship exists between them.||Ownership is separate.Each owner has a distinct, specified share in the property, separate to each other. The share is undivided, meaning it cannot be divided further or spread among other owners.

Assured Shorthold Tenancy
Fixed term tenancies
The general law applies. Where joint tenants hold a fixed term, the survivors become the tenants. If a sole tenant dies the tenancy dissolves according to his will or on intestacy – see below under general law.
Periodic tenancies – joint tenancies
In the case of a periodic tenancy (including a statutory periodic tenancy) held by joint tenants, where one of the joint tenants dies the general law applies and the survivors become the tenants.
Periodic tenants – spouse living with the sole tenant
Where the tenant was a sole tenant and... Please login or signup to continue reading this content

This provides a simple way to transfer California real estate at death without having to go through California probate. (Probate Code §5600, et seq.) The way to look at this is it is a “Transfer-On-Death Deed ” NOT a transfer during life deed. It only applies to residential properties and must be promptly recorded after it is notarized. This document is exempt from documentary transfer tax under Rev. & Tax. Code §11930. This document is exempt from preliminary change of ownership report under Rev. & Tax. Code §480.3.
For the specific requirements and a sample, click here:
Residential Property Only – The property transferred by the TOD Deed must be (a) property that includes a structure with at least one—but not more than four—dwelling units; (b) a condominium; or (c) agricultural property of less than 40 acres with a single-family residence. TOD Deeds cannot be used to transfer commercial real estate or other non-residential property.
- Valid Legal Description – The property must be identified by a proper legal description. Not just the common or street address
- Legal Capacity – The owner must have legal capacity to enter into contracts. This requires that the owner be at least 18 years old and be capable of understanding the consequences of the TOD Deed.
- Signed, Dated, Notarized, and Recorded Within 60 Days – The TOD Deed must be signed, dated, and notarized (acknowledged by a notary public). It must also be recorded in the land records of the county where the property is located within 60 days of the date it is signed.
- Identify Beneficiaries by Name – The deed must identify the beneficiaries by name. A designation of beneficiaries by class is not effective. That means, for example, that a homeowner cannot leave the property to “my children in equal shares.” Instead, the deed must list each child by name.
- Specific Statutory Form – California law does not allow any deed form to qualify as a TOD Deed. All TOD Deeds must be in substantially the same form required by California law, and drafters may not add custom conditions to the form. To ensure that the deed will be respected, it is important to follow the specific form specified in the California statutes.
- Here is a sample form. Simple revocable transfer on death (TOD) deed Transfer on Death Deed (Chicago Title)

A Simple Key For probate death title UnveiledA simple way to stay away from your home going through probate is to present A lot of it away prior to deciding to die. Offering items can permit you to determine accurately who receives what without the courts’ involvement.
Dependent upon your condition, it may well make more feeling to provide the home move directly to heirs or beneficiaries, bypassing the probate course of action. You need to seek advice from or use a trusts and estates attorney to make certain that you do not make any expensive problems within your make an effort to keep away from probate.
Title held as joint tenancy happens when two or more entrepreneurs individual an undivided interest in your entire home having a right of survivorship. On a co-joint tenant’s death, the decedent’s share in the residence transfers to your surviving joint tenant(s), not his / her heirs or beneficiaries.
When there is a surviving spouse who was not named on the first deed, the deceased wife or husband's will decides the distribution from the house. If there's no will, then the guidelines of intestate succession will identify who is entitled for the residence.
When property passes to the joint owner, TOD, or POD, it passes beyond your estate. Your estate contains all other property, not jointly owned or listing a TOD or POD.
Look at with an area title business or property legal professional so as to determine In the event your point out permits TOD deeds. If the point out won't allow transfer on death deeds, you are able to generally title a joint operator for each bit of real estate that you simply very own.
Due to this fact, the transfer of property on the meant heirs is often a prolonged method usually Long lasting among 6 months and a pair of many years. Through that time, the house may not be capable of be bought and if sold the heirs could have minimal entry to the sale proceeds.
It can be crucial to note that on the death of past surviving joint tenant, the residence will pass to the heirs and/or devisees of the last surviving joint tenant with the probate system.
Get title with somebody else making sure that joint ownership exists. Then, when one of several owners dies, the title simply passes on to one other operator — no probate involved!

The higher the basis, the smaller the difference between it and the sales price. When an inherited asset is sold the result is always treated as a long term capital gain or loss, regardless of how long the asset was owned by the original owner or the heir.
For example, take that house inherited by a son from his mother with a date-of-death value of $200,000. If the son promptly sells it for $200,000, no tax will be owed, because he gets a fresh start tax basis of $200,000. But if his tax basis had been the same as his mother’s, $75,000, then he would have owed capital gains tax on his gain of $125,000 on the same transaction.
Jointly Owned Property
Tax basis gets a little more complicated when a property is co-owned and one of the owners dies. It’s a common situation, of course, because many couples own valuable property together and leave their shares to each other. There are also situations where unmarried family members own property as joint tenants, such as when siblings inherit part of a parent’s home or sometimes a parent might gift part of their resident to a child in order to avoid probate.
Joint tenancy property
When a property is held by two owners in joint tenancy generally only half of it gets a fresh start tax basis when the first owner dies. For example, say a couple owns a house worth $200,000; they paid $150,000 for it. If one of the owners dies, the survivor gets a fresh start tax basis in the half he or she inherits. They already owned the other half-interest, so their basis stays the same. That means that the new basis is $175,000. The basis in the original half-interest is still $75,000, and the basis of the inherited half-interest is $100,000.
In community property states such as California married couples get a tax advantage. Both halves of community property (owned by the couple together) get a fresh start tax basis when one spouse dies and the other becomes sole owner because each spouse legally owns 100% of all community property rather than each of them owning 50%. So in the example above, the surviving spouse would have a new fresh start tax basis of $200,000 after the first spouse dies.
When a gift is made the recipient’s basis generally is what the giftor’s basis was prior to the gift.

In California, property is usually transferred to the spouse and/or children of a person who does not have a valid will at the time of death. If no spouse or children exist, assets are typically divided amongst parents, grandparents, or increasingly distant relatives. If a person does not have a will when they die, his or her relatives can make claims to his or her various assets and property. This may result in probate, which can be a lengthy and expensive process.
Call Ryan Blatz Law to Discuss Your Estate Planning Needs
A will is simply one of the most fundamental aspects of an estate plan. There are many other factors involved, including establishing durable powers of attorney for finances and medical decisions, setting up revocable or irrevocable living trusts, and more. At Ryan Blatz Law, I can help you navigate the process of estate planning. My goal is to serve as your guide, providing personalized advice and one-on-one legal counsel.
Request a complimentary consultation by contacting the firm at (805) 798-2249.

It will pass under a Will, if there is one, or under the rules in the Administration of Estates Act if there is no Will. As Tenants in Common, you would hold the property in whatever shares you had agreed - usually this will be in the proportions in which you each contributed to the purchase price (disregarding the Mortgage). We shall need to know from you how you want to deal with the shares in the property before we can draft the Transfer of the property into your names. The points set out below may help you to consider the matter:- 1. For a married couple with children (particularly where you are already selling an existing matrimonial home) it is probable that you would want to opt for the joint tenancy, unless there were Inheritance Tax considerations to be taken into account. 2. For an unmarried couple with no children, a tenancy in common may be more appropriate for two reasons. First, if either of you were to die, you might want your individual shares to go back to your own family. That would not happen, of course, with a joint tenancy, particularly if something happened to both of you at the same time. Secondly, if your relationship broke up whilst you were still unmarried, the property would probably have to be sold, or one party may wish to buy the other out. On a sale, you would probably each want your proportion of the proceeds of sale to represent the proportion of your original contribution to the purchase price. If one of you was to buy the other out, no doubt you would want the purchase price of that share to reflect the contribution made to the original purchase price. We can provide for a tenancy in common whilst you remain unmarried which would convert to a joint tenancy on marriage. Unmarried couples should also consider entering into a Cohabitation Agreement which could deal with other related matters such as ownership of furniture or the proceeds of endowment policies. We could prepare an appropriate Cohabitation Agreement if you wish. 3. If you want to preserve your individual shares in the property, you must opt for a tenancy in common. However, if you do so, you ought to make a Will - there is no guarantee that the shares will go where you want them to if you do not make a Will. 4.

You may have recently found yourself looking over many of the possessions you have accumulated over the years. Some of them may hold a considerable amount of meaning to you, while others you may simply have obtained out of necessity or passing interest. Nonetheless, you may still have begun wondering what would happen to your assets after your death.
Many people find themselves considering this idea at some point in their lives, and it can often lead to the start of estate planning. You may wonder whether creating an estate plan is necessary or even useful for your situation. However, estate planning could offer benefits to anyone, and if you do not create a plan, California state law dictates who receives your assets.
Dying without a valid will is known as dying intestate. In such cases, your wishes for property distribution and other tasks related to closing your estate remain unknown by your surviving family and the court. As a result, the court decides who should act as personal representative and how to distribute your assets. When it comes to intestate succession, your personal circumstances could play a significant role in who receives what property. For example:
- Single, no children – If you have no spouse or children, your parents may end up with your remaining assets. If your parents have already passed, any siblings you have — including half-siblings — will receive a portion of your property. Without parents or siblings, more distant relatives may obtain your property.
- Single with children – If you have no spouse but do have children, your children will inherit the entirety of your estate. The court should divide your property equally among them.
- Married, no children – In the event that you have a surviving spouse and no children, your spouse will likely take over your assets, or the court may divide separate property between your spouse, parents and siblings.
- Married with children – If you have children, your spouse should receive your entire estate as long as your surviving spouse is the biological parent of your children.
Other scenarios could also come into play such as whether you lived with your partner unmarried.
If you do not like the idea of not knowing for certain where your assets will go after your death, or if you would like for certain individuals to receive specific assets, you may wish to consider estate planning. Creating a will or other documents could help you make your wishes known.

This allows an owner to dispose of their interest as they wish, either during their lifetime or through their will.Shares may be equal or unequal; either way they are expressed (in percentages or proportions) and recorded on the title.There is no physical division of the property; all owners have equal use rights, see Possession below.|
|Each owner is entitled to possession of the entire property at the same time, but no right to exclusive possession of any part.||Even though co-owners separately hold specific shares, they are equally entitled to possess the entire property in common with each other, and at the same time. No one has exclusive possession to any part.|
|Right of survivorship?|
|Yes. When a co-owner dies, the surviving co-owner(s) continue to hold the property. This right of survivorship continues among surviving co-owners until there is one left. This person will then own the whole property, (see the flowcharts). When they die, the property will pass according to the terms of their will, or the succession rules on intestacy.||No.|
|Are co-owners’ interest distinct from each other?|
|No. A co-owner does not hold any particular share solely in their name. Everyone owns the whole property together.||Yes. Each co-owner holds an identified proportion separate to the others.|
|Can a co-owner deal with their interest independently of the others?|
|No. All co-owners must act together as a whole to preserve the joint tenancy. To do otherwise may end or “sever” the joint tenancy and the co-ownership would become as tenants in common.A feature of joint tenancy is the close relationship formed between co-owners to create it in the first place. See the four unities above.||Yes. Co-owners may deal with their shares as they wish, independently of each other. They may sell, mortgage, transfer, lease or dispose of by will without affecting the tenancy of the others.|
|Planning for succession & willmaking – Does an owner have an choice or control in who inherits their interest?|
|No. On death the right of survivorship rule automatically applies and independently of intentions expressed in a will.||Yes.

If owned personally a co-owner’s share becomes part of their estate when they die, consequently they may choose who takes their interest by making a valid will.|
|Can a co-owner dispose of their interest in their will?|
|No. The survivorship principle overrides a will. If a co-owner decides they no longer want their interest to pass automatically to the others, they need to sever the tenancy and own as tenants in common.||Yes, if owned in their name, to whomever they choose, in their lifetime or by nominating a successor in their will. If no choice is made, it passes according to the laws on intestacy.|
|When a co-owner dies|
|The right of survivorship applies. This means that when a co-owner dies the surviving co-owners automatically continue to own the whole property, by the operation of law. If there are only two co-owners or joint tenants, then on the death of one, the surviving one automatically owns the whole property in their name. When the survivor dies, the property passes according to the terms of their will, or by the statutory rules of intestacy.||Each owner can dispose of their share independently of the others in their lifetime, including by will, and to whomever they choose.If no will or an invalid will, then their interest is distributed according to the statutory rules of succession on intestacy.|
|Is probate required?|
|Changing the title records – generally See your Land Titles Office for information and requirements.|
|To note the survivor(s) on the register of land titles, Land Titles Offices usually require presentation of a:
||Land Titles Office reguirements typically include copies of the:
30 November, 2013
Last updated 9 March 2015.
© BHS Legal

So, after one spouse files a petition with the court to initiate the divorce, the spouses are now involved in a “dissolution proceeding.” This means that during these six months, and very often longer, the spouses are seeking assistance from the court. This assistance includes such things as temporary spousal support payments, temporary child support payments, and even requesting that the other spouse pay for attorney fees. All these mini-trials along the way occur before the divorce becomes final.
So, the salient question is—“What happens if I die after the divorce proceeding has begun but before the divorce is final?” Ready for this? It’s the same as dying like you are still happily married. This truth should be a great motivator for people to confront the reality of death and the increased hardship it can cause during divorce without the proper planning.
First, if you don’t have a will, or you had yourwill drafted before the divorce proceeding, visiting an attorney’s office to help you draft a new will is an important step to help assure that your property, like your '69 Camaro that you purchased before the marriage, will be given to your brother, not your soon-to-be ex-spouse.
Next, if you and your soon-to-be ex-spouse own a home together, it is likely that you and your spouse took title to the home as either community property with right of survivorship or as joint tenants. If so, it’s important to know the effects of holding title like this. Generally, and to keep this simple, it’s easy if you picture ownership as each spouse owning his/her own 50% of the house. And, if the spouses hold title in one of the two forms mentioned above, then when one spouse dies, the other spouse will take the other half of the house, thus becoming 100% owner. (Of course, there are a few papers to file with the court, but these filings are a topic for another article)
So, if you die before the divorce is final, generally, (without discussing the complexity of bifurcation issues), your soon-to-be ex-spouse will take your 50% of the home. Go figure. Usually not what people expect when seeking a divorce. So, it’s crucial to discuss with your attorney the possibility of changing your 50% interest in the home to tenants in common, which is another way to hold title to a home.

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A joint tenancy deed refers to the legal proof that a piece of real property is owned by two or more individuals. A land deed is required to show the ownership of any piece of real property. Such deeds are on file with the municipality where the land is located, and are used when the land is sold or improved upon to ensure that only the rightful owner is acting on the land.
When two people own property together, there are several different ways in which that ownership can be split under the laws regarding real property in the United States. One of the ways in which the property can be owned is joint tenancy, which means each party has an ownership stake in the land. If the property is owned in this particular form by two or more people, a joint tenancy deed is used to indicate the nature of the joint ownership.
One common form of joint ownership is joint tenants with rights of survivorship. When this option is chosen, the land deed must clearly reflect this and must be signed by both parties upon acquiring or purchasing the land. Under a joint tenants with right of survivorship ownership system, each of the two parties named on the joint tenancy deed will automatically leave the property to the other party upon his death.
In other words, a person who owns the property under a joint tenancy deed specifying a right of survivorship is not able to will his property to anyone of his choosing. Instead, the property automatically passes to the other joint tenant named on the joint tenancy deed. The property will not pass through probate when left to the other joint tenant, and there will be no estate or inheritance taxes charged when the property transfers to the other joint tenant.
Joint tenants with right of survivorship is only one form of joint tenancy that exists within the United States. Other forms include tenancy by the entirety and tenants in common. Some types of joint ownership allow for the parties to have an unequal ownership share of the real property, while others allow the parties to each leave their share of the property to a party of their choosing. Regardless of which form of joint ownership is selected by the parties, the joint tenancy deed must specify exactly how the land is owned.
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As of press time, these provisions were expected to pass and become law very soon. If they do, and Janet and Sara register as domestic partners, in most cases Sara would inherit all of Janet’s property, including her interest in the home if Janet dies without a will, regardless of whether Sara’s name is on the title. Likewise, if both Janet and Sara are on the title, even if only as “two unmarried individuals,” the presumption would change from “tenants in common” to “joint tenants with rights of survivorship,” and Sara would avoid probate and own the home upon Janet’s death.
Regardless of whether the domestic partnership protections become law, the safest thing for same-sex couples to do if they wish their home to be treated similarly to that of married couples is to title it as “joint tenants with rights of survivorship.” Couples must also be vigilant at the closing to ensure their intentions are carried out in the final paperwork. Take it from one who has been there: don’t sign it until it is right.

The husband in the case at bench did not invoke jurisdiction of the probate court either by asserting a substantive right as heir, legatee, or devisee or by participating in the probate proceedings. (See Estate of Plum (1967) 255 Cal.App.2d 357, 63 Cal.Rptr. 241.) Under the circumstances of this case, the probate court was not free to try the question of joint tenancy or any claim adverse to the estate. (See (1967) 7 Santa Clara Lawyer 275, An Extension of Probate Jurisdiction; Estate of Baglione, Supra (1966) 65 Cal.2d 192, 53 Cal.Rptr. 139, 417 P.2d 683.)
The recent case of Estate of Casella (1967) 256 Cal.App.2d 312, 64 Cal.Rptr. 259, while using some broad language in referring to the court's jurisdiction, did not actually expand the probate court's jurisdiction beyond the expansion announced in Baglione. Although the court never expressly examines the question of how the wife originally invoked the jurisdiction of the probate court or even if that is a necessary prerequisite for the court to then decide the wife's adverse claim in joint tenancy, the wife did originally allege that all the property was community property, until she changed her contention that it was joint tenancy property. A surviving wife's claim to community property is in privity with the estate (Prob.Code, s 202); by making such a claim she thereby invoked the court's decision. There is nothing in the Casella case, even in spite of some very broad language, which actually dispenses with the requirement that the court's jurisdiction must be originally invoked before the court can decide related adverse claims.
Respondent argues that finding that property is in fact community property and that it was held in joint tenancy only as a matter of convenience ‘was no determination of title’ and therefore the court had jurisdiction. That this is a determination of title is implicit within such cases as Wilson v. Superior Court, Supra (1951) 101 Cal.App.2d 592, 225 P.2d 1002.

1. What happens if I die without a Will? If you die without a Will, what you own (your “assets”) in your name alone will be divided among your spouse, domestic partner, children, or other relatives according to state law. The court will appoint a relative to collect and distribute your assets.
2. What can a Will do for me? In a Will you may designate who will receive your assets at your death. You may designate someone (called an “executor”) to appear before the court, collect your assets, pay your debts and taxes, and distribute your assets as you specify. You may nominate someone (called a “guardian”) to raise your children who are under age 18. You may designate someone (called a “custodian”) to manage assets for your children until they reach any age from 18 to 25.
3. Does a Will avoid probate? No. With or without a Will, assets in your name alone usually go through the court probate process. The court’s first job is to determine if your Will is valid.
4. What is community property? Can I give away my share in my Will? If you are married and you or your spouse earned money during your marriage from work and wages, that money (and the assets bought with it) is community property. Your Will can only give away your one-half of community property. Your Will cannot give away your spouse’s one-half of community property.
5. Does my Will give away all of my assets? Do all assets go through probate? No. Money in a joint tenancy bank account automatically belongs to the other named owner without probate. If your spouse, domestic partner, or child is on the deed to your house as a joint tenant, the house automatically passes to him or her. Life insurance and retirement plan benefits may pass directly to the named beneficiary. A Will does not necessarily control how these types of “nonprobate” assets pass at your death.
6. Are there different kinds of Wills? Yes. There are handwritten Wills, typewritten Wills, attorney-prepared Wills, and statutory Wills. All are valid if done precisely as the law requires. You should see a lawyer if you do not want to use this Basic Will or if you do not understand this form.
7.

Warning! A will may not control the fate of some of your property. If you’re like most people, this is surprising to you. Your will only controls those assets in your individual name. Here’s what we mean:
1. Joint Tenancy Property: Many married couples own their house as well as their bank and investment accounts as joint tenants. Some single parents put a child’s name on a joint account or the house (not recommended) and some siblings jointly own a vacation home or hunting cabin (not recommended).
Jointly tenancy property has a right of survivorship, meaning that immediately upon the death of one owner, the property transfers to the surviving owner(s). For example, Sam and Suzy are a married couple and they own their house and financial accounts in joint tenancy. Sam dies. Suzy, by operation of law, now owns the house and the financial accounts.
This may not be what Sam wanted, especially if Suzy is a second wife and not the mother of his children. Will Sam’s children inherit any of his hard earned money? Not likely.
What if Sam and his brother, Mike, own a family vacation home as joint tenants? Sam dies, Mike inherits the vacation home. Sam’s widow and children must pay any applicable estate taxes on the vacation home, but don’t own it and have no right to use it. This may not be what Sam wanted.
2. Property in Your Revocable Living Trust: Trust planning is an excellent estate planning tool. When you do trust planning, your trust should be properly funded, meaning that your property is transferred into the name of your trust. Instead of being titled in your individual name or joint names with your spouse, your property is titled in the name of your trust. Therefore, the provisions (i.e. instructions) of your trust control the property.
For example, Sam’s trust provides that his sister, Mary, inherits the $50,000 investment account. Sam’s will says that brother, Tony, inherits this same investment account. Sam dies. Who inherits the investment account? Mary. The investment account is titled in the name of the trust so trust provisions apply. Mary inherits the $50,000 account.
3. Life Insurance and Retirement Accounts: Most people name a beneficiary for their life insurance and retirement accounts. These accounts are contracts. The assets go to whoever is named as the beneficiary.

In concluding that section 662 applies, the Court of Appeal relied heavily on two cases: In re Marriage of Lucas (1980) 27 Cal.3d 808 (Lucas ) and In re Marriage of Brooks & Robinson (2008) 169 Cal.App.4th 176 (Brooks ). Neither case supports the conclusion.
In Lucas, this court was concerned primarily with deciding “the proper method of determining separate and community property interests in a single family dwelling acquired during the marriage with both separate property and community property funds.” (Lucas, supra, 27 Cal.3d at p. 811.) Most of the opinion concerns the characterization of a house in which title was in the form of joint tenancy. Although it discusses presumptions at length, Lucas never cites section 662 even though that section had been enacted long before the opinion. Rather, it discusses two statutory presumptions, both of which used to be found in Civil Code former section 5110 and are now found in two separate sections of the Family Code. (Fam.Code, §§ 760, 2581.) One is the familiar presumption that property acquired during marriage is community property. (Id., § 760.) The other is a presumption, found in a statute within the community property law and fully consistent with the general presumption, that specifically governs real property designated as a joint tenancy. (Lucas, at p. 814.) As quoted in Lucas, that statute provided: “ ‘When a single-family residence of a husband and wife is acquired by them during marriage as joint tenants, for the purpose of the division of such property upon dissolution of marriage or legal separation only, the presumption is that such single-family residence is the community property of the husband and wife.’ “ (Id. at p. 814, fn. 2, quoting Civ.Code, former § 5110 [see now Fam.Code, § 2581].) Both of these presumptions favor a finding of community property, and thus they are compatible.
Significantly, the statutory presumption regarding property in the form of joint tenancy applies “[f]or the purpose of division of property on dissolution of marriage.” (Fam.Code, § 2581; see Civ.Code, former § 5110.) This language suggests that rules that apply to an action between the spouses to characterize property acquired during the marriage do not necessarily apply to a dispute between a spouse and a third party.

People often look for so-called “simple solutions.” This extends to the realm of estate planning.
When you hear about some of the pitfalls that go along with probate, you may start to get interested in probate avoidance on a DIY level. One way to arrange for the transfer of property outside of probate in a relatively simple manner would be to utilize something called Joint Tenancy with Right of Survivorship.
While this could be looked at as a pretty simple step to take to enable probate avoidance, it may not be much of a solution. Here’s why.
Joint Tenancy Is Co-Ownership
Joint Tenancy with Right of Survivorship is a long and rather wordy description of the condition of joint ownership.
Suppose you own your house outright. You have the right to add a co-owner to the property deed.
Let’s say that you name your son as the co-owner of your house. You want your son to inherit the home after you die, and you think joint tenancy is a simple way to accomplish this goal.
You do not really want your son to have control of a portion of the property while you are living. And, you would like to have the right to sell it if you choose to do this at some point in time. Your intention is to leave it to your son if you wind up remaining in it throughout your life.
The minute you make your son a joint tenant, he owns half the property. If he is sued and the court finds in favor of the plaintiff, your son’s portion of this property that you used to own by yourself could be attached.
A tax lien could be placed on the property if your son owed back taxes, because part of it is his. The value of his share of the property would also be in play during divorce proceedings.
Your son’s creditors could seek to attach the property as well.
If you wanted to sell the property because you needed the money for some reason, your son would have to agree. And, he would be entitled to half of the proceeds if you did agree because after all, you gave him half of the property.
Here’s another scenario. You name your son as the joint tenant, but you instruct him to sell the home after you die. You want him to distribute the proceeds among multiple family members.
From a legal standpoint, he does not have to follow these verbal instructions. The property becomes his after you die, and he can do whatever he wants to do with his property.

An estate planning attorney will tell you that assets need to be properly titled, so that your estate plan aligns with the assets. In some cases, you can use joint ownership of an asset to have the asset pass directly to an heir at the time of your death. However, it’s not always the right way to do it.
Every estate plan is different, because every family’s situation is different. However, any estate plan can be undermined, if assets are not titled properly. This is examined in the article, “Joint-ownership property titling can avoid costly probate process,” from Reflector.com, with a look at five ways of titling assets.
Joint tenancy. In this situation, two or more persons own equal shares of a property. The owners don’t have to be related or married to each other. When the asset is owned jointly by spouses, the asset is passed onto the surviving spouse at the death of the other spouse. However, when the asset is owned jointly by unmarried people, the entire value of the asset is included in the deceased’s estate and is subject to probate. Therefore, joint tenancy might not be the best property titling method, if you want to share joint ownership with somebody other than your spouse. If one of the owners doesn’t honor his/her financial obligations, the asset can be subject to the pursuit of creditors up to that owner’s respective ownership percentage.
Tenancy in common. This is similar to joint tenancy in many ways. However, the big difference between joint tenancy and tenancy in common, is that the relative ownership percentages of the tenants in common may differ. One owner can own 25% of the asset, while the other can own the other 75%. If one tenant in common dies, the percentage of her ownership in the asset is included in her estate and is subject to probate.
JTWROS. Joint Tenancy with Rights of Survivorship (JTWROS) means that the right of survivorship distinguishes JTWROS from joint tenancy and tenancy in common. When the owner dies, her share of the ownership is transferred to the surviving joint owner automatically by operation of law without probate. Each joint owner also has the right to transfer or sell his or her interest in the property without the consent of the other joint owner, and thereby destroy the JTWROS status.

What happens if The person who wrote the will and the benefactor of the will both die?
For any beneficiary, for any person, to take from a will they must outlive the testator the decedent aka, the person who made the will. When a beneficiary that was named in the will and was supposed to take passes away before the testator (or within 120 hours of the testator under the Uniform Probate Code, which regulates wills in some states) the gift to the beneficiary is removed. The only way the item would not be removed and thus go to the beneficiary’s heirs would be if there was a statute established by the state. If the state cannot determine whether the beneficiary or the decedent perished first each decedent is disposed of as if he had survived the other. For instance, if a husband and wife died in a car accident, but the state could not figure out which died first and both had placed each other in their wills and had no children, then the state would take each as surviving the other. These issues of course are directly related to simultaneous deaths in wills.
Estate Planning: Different Types of Simultaneous Deaths in Wills.
In addition, the testator is usually viewed as always surviving the beneficiary when it comes to deaths that occur at the same time in wills. So, the heir is always assumed predeceased when it comes to an intestate distribution, and in regards to life insurance policies it is usually viewed as though the insured survived and the beneficiary predeceased. Of course all these things only occur if there is a simultaneous death amongst the decedent and the beneficiary. In joint tenancy’s when both owners of the joint tenancy with the right of survivorship (both owners have an equal share to a whole) ½ of the property is viewed as though Tenant A survived and ½ of the property is viewed as though tenant B survived. Such deaths prevent the operation of the right of survivorship. For those of you who were not aware, generally under a joint tenancy with a right of survivorship means the last tenant alive gets the property.
Avoiding Simultaneous Deaths in Wills Issues
To avoid most of these simultaneous deaths in wills problems or other issues involved n the probate estate, attorneys can draft clauses into wills that specifically define who will be considered a survivor in the event of a simultaneous death scenario.

We live in “interesting” times as bankruptcy courts feel their way through the collision between California’s state laws on domestic partnerships and married same sex couples and the federal law found (and now ignored) in DOMA.
Lead by judges in the Central District of California, the Northern District of California bankruptcy judges have quietly but publicly stated that they will not sua sponte challenge joint filing by same sex married couples.
But whether a couple are registered domestic partners or married, under California law, they have community property.
California Family Code 279.5 created registered domestic partnerships. It provides that partners have the same property rights as spouses:
Registered domestic partners shall have the same rights, protections, and benefits, and shall be subject to the same responsibilities, obligations, and duties under law, whether they derive from statutes, administrative regulations, court rules, government policies, common law, or any other provisions or sources of law, as are granted to and imposed upon spouses.
Surprising things happen to community property in bankruptcy.
State law determines what property a person filing bankruptcy owns. Federal law will determine what happens to that property in bankruptcy.
A bankruptcy filing brings all of the couple’s community property into the bankruptcy estate. Whether one spouse files, or they file jointly, all of the community property is affected. There’s no “my half”, “your half” here.
Since, at present, registered domestic partners aren’t spouses, they can’t file a joint bankruptcy case. If both partners file, all of the community property comes into the bankruptcy estate of the first to file. If only one partner files, all of the community and the filer’s separate property comes into the estate.
In exchange for inclusion of all of a couple’s community property in a bankruptcy filed by just one spouse or partner, all of the community property acquired by the couple after the bankruptcy is protected from the creditors with notice of the bankruptcy case. That’s what’s known as the community property discharge.
Same sex couples need to carefully analyze their property holdings if they are considering bankruptcy relief. Spouses or not, the body of law on community property will apply.
I expect developments on the issue of joint filings by registered domestic partners, regardless of what the U.S. Supreme Court does with the issue of same sex marriage.
Joint tenancy property isn’t community property
Image courtesy of sea turtle and Flickr.

Landlords deal with a lot of challenging issues, but one of the saddest situations is a death on the premises. This is obviously a tragedy on an emotional level. In addition, from an operational standpoint, there are complex regulatory procedures and disclosures you will have to address. One question many landlords have asked over the years: are you required to disclose to future tenants that someone previously died in a particular property?
According to California Civil Code 1710.2, a death in your rental property is classified as a “material fact.” That means it is a detail that would impact a prospective tenant’s willingness to rent the property, or influence how much that applicant would be willing to pay for the property.
You, as the landlord or property manager, are obligated to disclose if someone passed away within the premises of your rental property. Usually, the deceased in question is your tenant. However, it could be anyone; you’re required to disclose even if the person who passed away was a co-occupant, a guest, a vendor or someone who wasn’t invited – for example, an intruder.
The law is specific that you disclose deaths which occurred within your specific residence. In other words, if you own a condominium unit, and someone passed away in the pool house, that’s not a mandatory disclosure it because it didn’t happen inside your residence. Likewise, if you have a duplex and someone died next door, that’s not within the specific rented premises. “The premises” is defined as the residence itself: the living unit enclosed by its four walls.
CCC 1710.2 requires that you provide this disclosure for the at least three years following the demise. You should include the information in your marketing material and during your application process, but you don’t initially have to go into tremendous detail. For example, you can say in your advertising that “specific information applies regarding the property’s history; applicants should ask for details.” Once you have an acceptable applicant, you should make sure that they understand there was previously a death on the property. You should also provide a clearly-written disclosure in the rental contract. It is important that you have documentation that the tenant has been made aware of the necessary information per CCC 1710.2.
If an applicant or tenant asks about the specific circumstances of the death, you are obligated to be thorough and accurate.

Strategic Estate Planning
Proper estate planning requires that you contemplate various scenarios in determining where and how your assets should be distributed. To that end, it is imperative that you attain proper guidance with respect to estate distribution so that your assets are divided up precisely as you dictate. The Oakland Wills law firm of Melanie Tavare is an experienced estate planning firm that can help you devise the perfect estate plan for your individual circumstances.
Even if you properly drafted a will that is airtight according to California law and standards, certain assets are non-probate assets. Thus, your will would pass through probate while those assets will automatically be distributed to certain beneficiaries.
California law states that assets held in a joint tenancy are not subject to probate. These assets include a bank account held in the name of the testator and a spouse, domestic partner, or anyone else, and will automatically pass to that person upon the passing of the testator. Similarly, a deed on the house that includes the name of the testator and the testator’s spouse, domestic partner, or child will automatically pass to the spouse, domestic partner, or child when the testator dies.
Life insurance and retirement benefits also pass directly to the named beneficiary without undergoing the probate process.
Therefore, when a California resident is preparing a will and considering the proper strategy for an estate plan, you should consider the entire picture. Do you own a house? Who else, besides for yourself, is listed as an owner of the property? Do you have a joint bank account with someone? Who are the beneficiaries of your life insurance and retirement plans? If you are not happy with those people receiving those benefits or feel that it creates inequality in how you would like your assets distributed, you should discuss it with your lawyer. You may need to take action to remove names from deeds, banks accounts, etc. so that the distribution will be to your liking.
Consider the Personalities of Your Beneficiaries
While it is impossible to know what the future will hold when your beneficiaries will inherit your estate, you should contemplate the likely outcomes of how they will behave. Often, people who are the nicest and finest will act shamefully when inheriting from an estate. Still, how you view them should determine how you allocate assets.
Sometimes, beneficiaries will to go to war in Probate Court. These situations often lead to situations in which assets are diminished over the course of the litigation.

Set Up Transfer-on-Death Stocks and Bonds
Stocks, bonds and other securities may be set up as transfer-on death securities. This allows you to control these financial accounts for as long as you live, without worrying about what a joint ownership may mean.
Fill Out Transfer-on-Death Papers for Motor Vehicles
Transfer on Death for motor vehicles is permissible in several states, including California. The DMV should have the papers you need to sign to complete a transfer on death title. This will allow your designated beneficiary to take immediate possession of the vehicle upon your death.
Enact Pay-On-Death Financial Accounts
For your bank and retirement accounts, you can designate a pay-on-death beneficiary. This avoids the chance that your beneficiary could spend down everything in the account if it’s held in joint ownership.
Heritage Law, LLP provides the knowledge and experience to make the probate process, including conservatorship and guardianship proceedings, as efficient as possible for family members, potential heirs, and executors of wills.

I was presented a really interesting hypothetical recently. I thought it would make for a good blog post as there are a lot of intricate turns. It gets into issues of how to hold title, how to distribute assets between husbands and wives, and how small estate options work after death.
In this case Harold and Wendy owned a property worth $125,000. More interestingly they actually owned 10% of a property worth about $1.25m. Why is this more interesting? The loan on the property is about the same. H and W are now deceased and the rest of the owners on the property want to sell it to get out from under it. H committed suicide after committing fraud on a number of real estate deals. W, was innocent in the transactions, and died a short time later penny-less. The title is held “Harold Doe and Wendy Doe husband and wife.” It does not specify joint tenants or rights of survivorship. The rest of the owners need to clear title that is held in H and W’s names.
I think the biggest problem here is getting the property transferred from H to W. That is, transferring from W is easy. The total is less than $150,000 so that can easily be accomplished by a probate code 13150 petition to succession of real property. That’s the easy part. Getting the property into W’s name is the hard part. Why was it not held as “joint tenants” or as “community property with the rights of survivorship” I do not know. Maybe the Realtor or title company are at fault. However, it is what it is now.
The options I see for getting the property out of H’s name are as follows:
1) Disclaimer: If this had been done within 9 months of his death a disclaimer would have been a simple and inexpensive way to clear title to H’s 1/2 of the 10%. However, it’s been longer than 9 months so that won’t work here.
2) Spousal Property Petition: This is usually my go-to option if an asset is not held in joint tenancy or with rights of survivorship after one spouse dies. However, in this case they had a will which poured over to a trust. You can not use a SPP when there is a will pouring to a trust. So that option is off the table.

California Affidavit of Death
Has your spouse recently passed away? If the two of you held title to real estate as community property in California, you will need to file this California Affidavit of Death form.
- First you will need to sign the Affidavit in front of a Notary.
- Then you must file it with the County Clerk in order to have title to the property transferred solely into your name.
- You'll need to attach a copy of the Certificate of Death to the form.
Buy the California Affidavit of Death form and download it. Then you can fill in your details, print it, and take it to a notary for signing.
Last Updated: 14-April-2016

People sometimes assume that everything will just fall into place naturally if you pass away without any estate planning documents, especially if you are married. In fact, this is a misguided assumption. Many negative consequences can come about if you do not take the time to construct a personalized estate plan that ideally suits your needs.
The Condition of Intestacy
If you were to die without an estate plan, the condition of intestacy would be the result. This would be true if you are single, or if you are married. Under these circumstances, the probate court would step in to sort things out under the intestate succession laws of the state of California.
A personal representative would be appointed to handle the estate administration tasks. Final debts would be paid out of the assets that comprise the estate, and ultimately, the probate property would be distributed under the intestate succession laws.
Exactly how your property would be distributed if you die intestate when you are single would depend upon the familial relationships that were in place at the time of your passing.
Your children would inherit everything if you were to pass away as a single parent, and your parents would inherit everything if you died single without any children. If you were to pass away as a single person without any living parents or children, and you have siblings, your siblings would inherit your probate property.
There are laws that would apply to different familial relationships if you were to pass away without any living children, parents, or siblings.
Sometimes, a person will pass away intestate with no living relatives at all. Under these circumstances, the state could ultimately absorb the probate property under escheat laws if no relatives are found.
Action Is Required
There is no reason to go through life without an estate plan. Every responsible adult should have a plan in place, and this includes single people who are relatively young adults. You have to make sure that your assets are transferred to inheritors of your own choosing, and you should also prepare for possible incapacity when you devise your estate plan.
If you are frozen with inaction because you do not know where to begin, this is somewhat understandable, but you can take the first step right now. Our firm offers free consultations, and we would be glad to sit down with you, gain an understanding of your situation and your objectives, and help you create a personalized estate plan that ideally suits your needs.

There are advantages and disadvantages to both a joint tenancy and a tenancy in common. Which one is best for you will depend on your individual needs and circumstances.
Many married couples opt for joint tenancies because they don't perceive any advantage in defining separate shares - particularly if they want the property to pass automatically to the surviving spouse if one of them dies.
Tenancy in common may be more suitable for couples where one spouse has children from a prior relationship, unmarried couples, brothers and sisters, parents and children, or business partners - since in these cases one of the title-holders may not want the other owner(s) to inherit their share, at least not the entirety of it.
If, for this decision, you plump for a tenancy in common, you must remember to write a will, since if you fail to do so the laws of intestacy will determine who gets what - which may defeat your objective of rejecting a joint tenancy,
For example, under the intestacy rules, your spouse would receive all of your personal chattels (e.g., clothes, jewelry, etc), a statutory legacy of £250,000, plus a life interest in half of anything that remains - this could swallow up virtually all of your interest in the property.
Meanwhile, your children (or their offspring) would receive the other half of anything that remains of your estate and the capital that is left after your spouse's life interest ends. Thus, they could end up with nothing or may have to wait a very long time to receive anything from your estate.
** Additional Information & Advice **
Depending on your circumstances, however, you may want to speak with a solicitor who specialises in conveyancing and/or will preparation. You can find a solicitor in your area for free via solicitor matching services, which can also help you to understand the best course of action and whether you are ready to hire a solicitor.

Property Co-Ownership and Challenging Wills
Wills are not the only documents that affect the beneficiaries of a deceased person’s property: other property transactions can also result in different people being left with – and without – an inheritance. Challenging wills is a last resort, and it is important to note that a will dispute is not the only means of challenging the distribution of someone’s estate. If you have reason to believe that a property transfer made during the person’s lifetime was made, for example, with undue influence, it is possible to challenge this transaction in addition to challenging the will.
Joint Tenants or Tenants in Common?
Joint tenancy and tenancy in common are the two different legal terms used to describe the types of division of ownership of one property between multiple owners.
Tenancy in common means different people can own different shares of a property (for example, one person can own 75% the other 25%). Tenants in common can also leave their individual share of the property to someone in their will. Tenants in common do not automatically leave their share to the other tenants if they die.
Joint tenancy takes place when people acquire equal shares of a property at the same time. It is not possible to leave your share of a joint tenancy to someone in a will. Joint tenancy invokes a right of survivorship, meaning that if one tenant dies, their share of the property is automatically left to the other joint tenant or tenants. The right of survivorship is a crucial point for contentious probate matters because a property transaction to become joint tenants can result in someone automatically inheriting a house.
The Facts of Hume v Leavey and Hume
Hume v Leavey and Hume [unreported] is a recent case involving an elderly lady’s decision to put her house in her and her son Glen’s joint names, leaving the £350,000 property to him, and not to her two other sons. Mrs Hume also wrote a will leaving the entire of her estate to Glen. Her son John challenged the distribution of his mother’s estate, claiming that her decisions were made with the undue influence of his brother.
The court considered evidence of Mrs Hume’s close relationship with Glen due to their shared love of hairdressing, his decision to give up his hair salon to look after her, as well as her strong willed character that rendered her unlikely to be vulnerable to coercive behaviour.

A “tenancy in common” is the most popular form of ownership and the default form of ownership if the parties do not specifically indicate otherwise on the deed. Each individual can own different and unequal percentages of the property. There is no right of survivorship, so if one were to pass away, that individual’s share would be given to whomever is designated in their will OR by default their heirs according to state law. That can get a little messy without a life estate provision in the deed. When a tenant in common owner dies, with or without a will, his or her interest must go through a probate court procedure which always involves some delay and cost, and can provide an opportunity for relatives to contest a will or argue about succession.
There is no one way to prepare for all of life’s unknowns, but a well thought out agreement between unmarried parties purchasing property together can reduce uncertainty and as well as expenses by clarifying the intent of the parties.

Thank you for using JustAnswer. I am researching your issue and will respond shortly.
When you say that she signed the interest over to you, in what way did she do that? Was that in a deed giving you her part of the property? Was the property held with "right of survivorship" in the deed?
She just had a hand written list of personal property which identified what each child was to receive and in that document she gave me her car and her "half ownership in the house." The documents I received when the loan modification was completed were in my name only...after they verified she was no longer living, etc..Larry
And in the deed that you're on that you co-own the house, does that say "joint tenant" and/or "right of survivorship" anywhere?
I will have to check on that. I know the subordinate deed of trust issued by HUD does not contain that language. I extended a mortgage reduction modification which meant that there is the deed for the house and a subordinate deed of trust in the amount of $48,000 that has to be paid when the house is sold.
Were these instructions that she left in her own handwriting?
Yes, and signed and dated...Larry
(by the way, a "deed of trust" is not the same thing as a "deed"... the deed is the document that gives you legal ownership, whereas the deed of trust is a document that secures the property to repay a loan)
You would want to check on the actual deed that the previous seller (or this woman) added you on that gives you that right to own half.
If there is a "right of survivorship" mentioned in the deed, then the property is yours.
Right of survivorship means that the property passes automatically to the other individual(s) on the deed.
Joint tenancy is also something that can give you this.
Now if it is silent as to that fact, or says "tenants in common" etc... then it would continue to be her property until transferred (that is, it would go to the estate).
And in that situation, only if this document were a will would it be something that you could claim the property on.
A non-will document that expresses desire or instructions that something happen is not a will.
And legally, if there is no will, the property would pass via the law of intestate succession.

If you and you partner jointly own property, his or her share will automatically transfer to you upon his or her death. Needless to say, the tax aliabilities associated with that joint property transfer as well.
To commence the transfer of the property out of joint names and into your name, you must apply for a Survivorship Application. Borchard and Moore will not only do this on your behalf, but will also inform you of the associated financial and tax implications of the transfer.
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