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Ambi, Home Buyer in Orange County, CA

Joint Ownership vs Community Property with Right Of Survivorship, Which is better?

Asked by Ambi, Orange County, CA Wed Dec 5, 2012

I am in Software service and was looking at various options of vesting a home, we( husband and wife) are planning to buy. I am in dilemma between Joint Ownership vs Community Property with right of survivorship. I have read and reread the definition and couldn't understand why we shouldn't go for Community Property with right of survivorship as it seems win-win. Why then all I speak with (friends , etc) have gone for Joint ownership. is it ignorance or they know better. Pls help.

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Taken from California Land Title Association:


The California Land Title Association (CLTA) advises those purchasing real property to give careful consideration to the manner in which title will be held Buyers may wish to consult legal counsel to determine the most advantageous form of ownership for their particular situation, especially in cases of multiple owners of a single property.

The CLTA has provided the following definitions of common vesting as an informational overview.
Review the comments, particularly, pertaining to WILLs

1. Community Property:


A form of vesting title to property owned by husband and wife during their marriage which they intend to own together. Community property is distinguished from separate property, which is property acquired before marriage, by separate gift or bequest, after legal separation, or which is agreed to be owned only by one spouse. In California, real property conveyed to a married man or woman is presumed to be community property, unless otherwise stated. Since all such property is owned equally, husband and wife must sign all agreements and documents of transfer.

****Under community property, either spouse has the right to dispose of one half of the community property, including transfers by will.*****

2. Joint Tenancy:


A form of vesting title to property owned by two or more persons, who may or may not be married, in equal interest, ***subject to the right of survivorship in the surviving joint tenant(s)***. Title must have been acquired at the same time, by the same conveyance, and the document must expressly declare the intention to create a joint tenancy estate. When a joint tenant dies, title to the property is automatically conveyed by operation of law to the surviving joint tenant(s). Therefore, *****joint tenancy property is**** not subject to disposition by will.*****

As these choices may have financial and legal ramifications, I advise that any critical decision, such as this, should be directed to an attorney. A small fee to spend to protect your interst later.
1 vote Thank Flag Link Thu Dec 6, 2012
Hi Ambi,

Claudia's post provides a clear reason why some may not be choosing Joint Tenancy - primarily that the survivor(s) take title of the others upon their passing.

Perhaps one of the Joint Tenants is a non-family member who paid a 20% deposit in order for all to purchase a property. You can see where an inequity can be created.

One more note: Our property is held in a Revocable Living Trust.
0 votes Thank Flag Link Thu Dec 6, 2012
Ambi.
When I was married we used a family trust to avoid any probate issues. California is a community property state and many married people use the community property manner of holding title. As a Realtor I cannot give legal advice. It would be best to talk to your attorney or CPA.
The links in Steve's post are good resources to help you decide.
0 votes Thank Flag Link Wed Dec 5, 2012
Ambi,

As agents we are not really allowed to advise you on this issue. You would be best served by consulting an attorney for your specific situation. It is important you understand the benefits and consequences of each vesting type. Your friends situations will not be the same as yours, so don't follow the crowd.

Kind Regards,

Marcie Sands, REALTOR
Simply The Best Real Estate Co., Inc.
760-644-1562
0 votes Thank Flag Link Wed Dec 5, 2012
Interesting... California certainly does thing differently than the rest of the union.

In Illinois we have JTWROS... Joint Tenancy With Rights of Survivorship, which is what most buyers opt for.
0 votes Thank Flag Link Wed Dec 5, 2012
Alan May, Real Estate Pro in Evanston, IL
MVP'08
Contact
Have you looked at setting up a trust? While your checking out the pros and cons....you might want to look at trusts too.

check out the links Steve provided. Really, both are good choices. A trust is good too!
0 votes Thank Flag Link Wed Dec 5, 2012
Hi Ambi,

These two legal posts may help you to decide:

"California is a community property state, but what does that mean?"
http://menon-law.com/california-is-a-community-property-stat…

"The Impact Of Joint Ownership Of Property"
http://www.dreyfusslaw.com/articles/Impact-of-Joint-Ownershi…

Personally, we chose Community Property with Right Of Survivorship.

-Steve
0 votes Thank Flag Link Wed Dec 5, 2012
Thanks Steve. Is there a downside of choosing CPROS ? Anyway whether Joint or otherwise, CA assumes all property as Community Property in case of married couples. I was also leaning towards CPROS, but got worried as to why so many of our friends chose Joint Ownership, because its counter-intuitive.
Best
Ambi
Flag Wed Dec 5, 2012
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