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Confidential to Married Couples Who Want To Own Property Jointly in California: Please Understand!

From the Desk of Jennifer N. Sawday:

 

As it goes, I have never met you – you meaning the dear reader reading this article or internet post. And unfortunately, since we have never met, my dear reader, I cannot give you legal advice. I can, however, give you some practice advice about home ownership and recommended ways to take title from my point of view when you both intend to own the property jointly and allow the survivor to take on full ownership when one of you passes away first.

To recap: if you are purchasing a home or have already purchased a home and you intend the home purchase to be owned jointly between you two with rights of survivorship. Meaning that one the first one of you passes away, the survivor shall own 100% of the home without having to go through some sort of legal proceeding then you should always take title in one of the following ways:

 

Don Sample and Mary Sample, Trustees of the Sample Family Trust Dated ___, 2019 This is the best way!

 

This means you have drafted a trust, put your home in the trust and will be avoiding probate after the death of the first of Don or Jenni to pass away. This works so long as the home remains vested in the trust until both Don and Mary pass on. The trust will control who is in charge of the home after Don and Mary pass on and who should get the home as well.

 

Don Sample and Mary Sample, husband and wife, as joint tenants This way works to avoid probate when the first one passes.

 

Then the survivor of either Don or Mary should set up a trust after the first death to avoid probate on the second death.

 

Don Sample and Mary Sample, husband and wife, as joint tenants with right(s) of survivorship This is the same as the above. Exactly the same.

 

Don Sample and Mary Sample, husband and wife, as community property with right(s) of survivorship This is essentially the same as the two immediately above. It just states clearly that the property is intended to be community property of the marriage.

 

You say, well that’s easy. But that is not easy. Because we see the following below examples all the time and it causes issues when the house is indeed vested in both names, but it does not state with right(s) of survivorship anywhere and one person of the pair has passed away! The survivor will need to file a probate, a spousal property petition or some other sort of petition to seek relief with the court to get title cleared and updated to be solely in the name of the survivor. Otherwise the survivor cannot put it in a trust, sell it or get a loan until title is cleared.

 

What you do NOT want are any of these examples:

 

Don Sample and Mary Sample This does not confer any rights of survivorship.

 

In fact, the law indicates that this is tenants in common and the survivor of the first to die will need to attend to some sort of probate court proceeding to get title cleared and transferred to appropriate party as it may not be the surviving spouse!

 

Don Sample and Mary Sample, husband and wife This does not confer any rights of survivorship.

 

In fact, the law indicates that this is tenants in common and the survivor of the first to die will need to attend to some sort of probate court proceeding to get title cleared and transferred to appropriate party as it may not be the surviving spouse!

 

Don Sample and Mary Sample, husband and wife, as community property This does not confer any rights of survivorship.

 

In fact, the law indicates that this is tenants in common and the survivor of the first to die will need to attend to some sort of probate court proceeding to get title cleared and transferred to appropriate party as it may not be the surviving spouse!

 

 

If you intend to own property together and want the surviving joint owner to take full title, it must say with right(s) of survivorship on the vesting deed. Those are the magic words.

If it does not state this – you have a few options. The best one is to set up a trust. The next best one is to do a new deed to update title to include the words after your names as follows: “joint tenants,” “joint tenants with right(s) of survivorship” or “community property with right(s) of survivorship.”

 

Should you have questions or wish to discuss, email me: jsawday@tldlaw.com.

 

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