The information provided below is intended for informational purposes only.  It is important to seek professional counsel from an attorney and/or CPA to determine the legal and tax consequences of how you hold title to real property.

 

Community

Property

Community Property with right of survivorship

Joint Tenancy

Tenancy In Common

Partnership/Corporation/

Limited Liability Co.

Trust

 

PARTIES

 

Husband and Wife or Domestic Partners

Husband and Wife or Domestic Partners

Any number of persons, but cannot be artificial entity such as corporation, LLC or trustee of trust

Any number of persons or entities may hold title as tenants in common

Only partners/shareholders/ members of the artificial entity

 

Trustee and beneficiaries of trust may be individuals, trusts or any legally created entity

 

 

DIVISION

 

 

Ownership and management are equal except control of business is solely with managing partner

 

Ownership and management are equal except control of business is solely with managing partner

 

Ownership interests must be equal (discuss can have equal interests in undivided interest)

 

Ownership can be divided into any number of interests, equal or unequal

Single legal entity, partners/ shareholders/members own interest in entity/ not property held

 

Interests in trust are personal property and are in accordance with terms of trust

TITLE

Title is in the “community”. Each interest is separate but undivided

Title is in the “community”. Each interest is separate but undivided

 

Each joint tenant has separate legal title to undivided interest, subject to right of survivorship

 

Each owner has separate legal title to undivided interest

Title is in the artificial entity

Held in name of trustee

POSSESSION

Each spouse or partner as equal rights of management and control

Each spouse or partner as equal rights of management and control

Equal right of possession

Equal right of possession

 

Entity has sole right of possession. Entities organizational documents determine individual partners/ shareholders/members rights, if any.

 

In accordance with terms of trust

CONVEYANCE

Both spouses or partners must convey or encumber, in writing, or conveyance is void

 

Both spouses or partners must convey or encumber, in writing, or conveyance is void. Right of survivorship may be terminated by same procedures as joint tenancy

 

Each owner’s interest may be conveyed or encumbered individually, but conveyance or encumbrance without joinder of other joint tenants severs joint tenancy.

Each owner’s interest may be conveyed separately

Conveyance authority determined by organizational documents and applicable statutes

Trustee has authority to convey in accordance with terms and limitations trust agreement

 

DEATH

 

On spouse’s or partner’s death, 1/2 belongs to surviving spouse/partner; 1/2 passes by will or if no will, then passes to surviving spouse or partner

Upon death of spouse/partner, his/her interest passes to surviving spouse/partner without administration

On co-owner’s death, interest passes to surviving joint tenants. Interest may not be disposed of by will.

Interest passes by will or intestate, if no will. Interest must be probated.

Entity not capable of dying. Impact, if any, of death of partner/shareholder/member on affairs of entity determined by organizational documents and applicable statutes.

 

Upon death of trustee, successor trustee, if any, holds title on behalf of trust. Effect of interests in trust upon death of a beneficiary determined by terms of trust agreement

 

SUCCESSOR

STATUS

 

If passing by will tenancy in common with surviving spouse if passes to spouse, then owned in entirety by surviving spouse

 

If passing by will, tenancy in common with surviving spouse, if passes to spouse, then owned in entirety by surviving spouse

Last survivor owns property

Devisee or heir becomes tenant in common with other owners

Interest, but not management authority, of partner/shareholder/ member in the entity passes by will or if no will by Intestate succession

Defined by terms of trust agreement

CREDITOR’S

RIGHTS

 

Property is liable for the debts of either spouse made before or after marriage, subject to homestead rights, if principal residence

Property is liable for the debts of either spouse made before or after marriage, subject to homestead rights, if principal residence

Involuntary lien of creditor or deed of trust terminates on death of joint tenant. If creditor executes on lien prior to death and acquires title, becomes tenant in common with remaining joint tenants

Owner’s interest may be sold on execution sale to satisfy creditor. Creditor becomes tenant in common with remaining owners

Creditor of partner/shareholder/ member may obtain order attaching interest in entity, but not property held by entity

 

Creditor with lien/ judgment against beneficiary may execute on beneficiaries interest in trust, not property held by trust. Lien against individual trustee not attach to trust. However, if trustee is settler of revocable trust, lien may attach

PRESUMPTION

Strong presumption that property taken as “husband and wife” or as “domestic partners” is community property

Strong presumption that property taken as “husband and wife” or as “domestic partners” is community property

Creation of joint tenancy must be in writing

 

Joint ownership presumed to be as tenants in common, unless title acquired by “husband and wife”

Property must be expressly vested in partnership

 

Property must be expressly vested in trustee of trust. Trust is created by executed trust agreement

 

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