|
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 |