How you hold title to real property affects your estate plan. In some cases, an improperly held asset may actually have the opposite result from what you intend. This issue focuses on some of the issues that arise from different forms of legal title to property. It is not intended to provide specific legal counsel for your particular circumstances, rather, it raises some “food for thought” when you meet with your estate planning attorney to create or modify your estate plan.

California law provides several ways in which a person can hold legal title to assets such as real property or financial accounts. The primary forms of title for a married couple are: joint tenants with right of survivorship, community property, community property with right of survivorship, and tenants in common. A married person’s property which was acquired before marriage or which was acquired during marriage by a specific gift or inheritance may be held as the married person’s sole and separate property. A single person may hold title to property with another person either as joint tenants with right of survivorship or as tenants in common. I will discuss what happens with each form of title on the death of one of the persons on title.

The survivorship right belonging to a person who holds title with someone else as “joint tenants with right of survivorship ” means that upon the death of the first person to die, the property belongs to the surviving person by operation of law.

For example, John and Jane Doe, a newly married couple, purchase their first home together. When the real estate agent asks, “How do you want to hold title?” they respond, “Jointly!” The property becomes conveyed to them as follows: “John Doe and Jane Doe, husband and wife, as joint tenants with right of survivorship”. Upon the death of John Doe, Jane Doe will own the property by operation of law and title will pass to her upon the recording of an affidavit of John’s death. John Doe’s Last Will and Testament or his Living Trust will not control the ownership of this property.

Another way for couples to hold title to their property is “husband and wife as community property ”. If this form of title is used, the California Probate Code provides that “upon the death of a married person, one-half of the community property belongs to the surviving spouse and the other half belongs to the decedent”. This means that the deceased spouse’s interest in the community property does not automatically belong to the surviving spouse when the deceased spouse dies. If a married person signs a Will which gives his or her community property interest to someone other than his or her spouse, such as to a child or to a grandchild, that person, rather than the surviving spouse, owns the property. This may not exactly be what the deceased spouse wanted.

Note that if a married person dies without a Will, that is, intestate , the California Probate Code provides that “the intestate share of the surviving spouse is the one-half of the community property that belongs to the decedent”. Therefore, upon the death of a married person without a Will, all of the community property belongs to the surviving spouse.

*Community Property is discussed here only as it relates to couples who are married to each other at the time of the death of one spouse. There are other issues regarding community property under circumstances where the couple’s marriage is dissolved or the dissolution is pending which are outside the scope of this article.

As of July 1, 2001, California law added a form of community property which expressly provided for a right of survivorship. If a couple wanted to hold title as “ community property with right of survivorship ”, then such property would pass to the surviving spouse on the death of one of the spouse, by operation of law, the same way it does for persons who hold title as joint tenants with right of survivorship. Unlike “community property”, a couple who holds title to their property as “community property with right of survivorship” may not transfer either of their undivided interests by their Will or Living Trust.

Note that for this form of title, there must be a specific reference to the survivorship right in order for the property to pass to the survivor without administration.

Tenants in common is a form of joint ownership but without the survivorship right upon the death of one of the joint owners. On the death of one of the owners, the portion of the property held as “ tenants in common ” which belongs to the deceased owner passes under the decedent’s Will. The recipient of such property continues to hold title with the surviving original owner as tenants in common.

Title to property may inadvertently change from joint tenants with right of survivorship to tenants in common if the joint tenancy is severed. This can be done by one of the joint tenants unilaterally and without the consent of the other joint tenant.

As you can see, the manner in which title is held is a vital part of your estate plan that should be discussed thoroughly with your estate planning attorney.

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