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Nanyme, Other/Just Looking in California

what are the various ways a married hold title to their home& the advantages&disadvantages of holding title?

Asked by Nanyme, California Tue Sep 11, 2007

Explain the various ways a married couple could hold title to home and the advantages and disadvantages of each method of holding title.

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There is tenancy in common, joint tenancy, community property and community property with right of survivorship. I can tell you what each entails, but it's up to you and your attorney or CPA to decide what an advantage or disadvantage would be depending on your circumstances.

TENANCY IN COMMON
Any number of persons (may be husband and wife)


Ownership can be divided into any number of interests, equal or unequal.
Each co-owner has a separate legal title to his/her undivided interest.
Equal right of possession.
Each co-owner’s interest may be conveyed separately by its owner

Purchaser becomes a tenant-in-common with the other co-owners.
On co-owner’s death, his/her interest passes by will to his/her devisees or heirs. No survivorship right.
Devisees or heirs become tenants-in-common
Co-owner’s interest may be sold on execution sale to satisfy his/her creditor. Creditor becomes a tenant-in-common
Favored in doubtful cases except husband and wife.

JOINT TENANCY
Any number of persons (may be husband and wife)


Ownership interests must be equal.
There is only one title to the whole property.
Equal right of possession.
Conveyance by co-owner without the others breaks the joint tenancy.

Purchaser becomes a tenant-in-common with the other co-owners
On co-owners death, his/her interest ends and cannot be willed. Survivor owns property by survivorship.
Last survivor owns property in severalty.
Co-owner’s interest may be sold on execution sale to satisfy creditor. Joint tenancy is broken, creditor becomes tenant-in-common.
Must be expressly stated and properly formed. Not favored.

COMMUNITY PROPERTY
Only husband and wife


Ownership and managerial interests are equal except control of business is solely with managing spouse.
Title is in the “community.” Each interest is separate but management is unified.
Both co-owners have equal management and control.
Personal property (except "necessaries") may be conveyed for valuable consideration without consent of the other spouse; real property requires written consent of other spouse, and separate interest cannot be conveyed except upon death

Purchase can only acquire whole title of community; cannot acquire a part of it
On co-owner's death, 1/2 belong to survivor in severalty, 1/2 goes by will to descendant's devisee or by successoin to survivor.
If passing by will, tenancy-in-common between devisee and survivor results.
Property of community is liable for contracts of either spouse which are made after marriage and prior to or after January 1, 1975. Co-owner's interest can't be sold on execution to satisfy creditor.
Strong presumption that property acquired by husband and wife is community.

Community Property With Right of Survivorship
Only husband and wife


Ownership and managerial interests are equal except control of business is solely with managing spouse.
Title is in the “community.” Each interest is separate but management is unified.
Both co-owners have equal management and control.
Requires written consent of the other spouse. However, one spouse may terminate the right of survivorship.

Purchaser can only acquire whole title of community; cannot acquire a part of it.
On co-owner's death, his/her interest ends and cannot be disposed of by will. Survivor owns the property by survivorship.
Last survivor owns property in severalty.
Property of community is liable for contracts of either spouse which are made after marriage and prior to or after January 1, 1975. Co-owner's interest can't be sold on execution to satisfy creditor.
Must be expressly stated. Not favored.
3 votes Thank Flag Link Tue Sep 11, 2007
Nanyme, Vicki did a great job of explaining the different ways of holding title. It is important that you talk with your tax preparer and/ or your estate planning attorney to decide which is best for you and your situation. There are advantages and disadvantages to all.

I would also suggest that you have a trust prepared and put the home in the trust. It is very little money to do, and well worth protecting your investment. I am always amazed how few homes are in a trust.

I'm not sure where you are located, but if you need the name of a good estate planning attorney, financial planner or tax preparer, I have great names for all- it's a service I provide to my clients to help them to make the most of their real estate investments- and their hard earned dollars.

Patti Phillips
800-680-9133
1 vote Thank Flag Link Wed Sep 12, 2007
Vicki has outlined the different types of title there are. However, not all states recognize all forms mentioned. For instance in Georgia there is no Community Property. I see you are in California so it would pertain to you - however, if you are moving to another state - I would inquire about what types are available.
1 vote Thank Flag Link Wed Sep 12, 2007
Talk to your real estate attorney. Realtors/Agents are not qualified to give advice on this question and neither are escrow and title officers. I would reccomend talking to an attorney skilled in this field and also explore the ramifications of a trust. Vicki is correct when she states you need to talk to a qualified professional for this decision.
1 vote Thank Flag Link Tue Sep 11, 2007
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