How do I hold Title? Let me count the ways.
When it comes to the title of a property there are different ways title can be held. The type of ownership you have in the property influences the legal ownership of the property as well as the way the property is transferred after an owner passes away. There are four types of ownership of property by two or more persons:
Tenants by the Entirety
Not all states allow Tenants by the Entirety. TBE is created when married persons hold title as Jack Hill and Jill Hill, Tenants by the Entirety. Spouses who take title as TBE own property as a single legal unit (the two become one) and the right of survivorship is assumed. Upon the death of one spouse title passes to the survivor by operation of law. Typically, probate is not required.
Joint tenancy is a special form of ownership by two or more persons. Joint tenants share equal ownership of the property and have the equal, undivided right to keep or dispose of the property. Joint tenancy creates a right of survivorship that provides that if any one of the joint tenants dies the remainder of the property transfers to the survivor(s). Typically, probate is not required.
Tenants in Common
Tenancy in common is an ownership of real property by two or more persons. All tenants in common hold an individual, undivided ownership interest in the property. We can think of this ownership in terms of percentages; 40/60, 10/90 etc. Unless otherwise stated, each of two tenants in common would have an assumed, undivided 50% interest. Each tenant has the right to sell or transfer their individual ownership interest. Upon the death of a tenant in common, his/her interest transfers to his/her estate. Probate will be required.
Not all states recognize community property. Laws vary among the states that do recognize community property; however, it is generally accepted that a husband and wife each acquire a one-half interest in property labeled “community property”. Real property accumulated by a husband and wife during their marriage becomes joint property even if it was originally acquired in the name of only one partner. Separate property is that property that each individual brings into the marriage, in addition to anything that either spouse acquires by inheritance during the marriage. If survivorship is not specifically recited on the deed Probate will be required.
Title is vested in Jack Hill and Jill Hill, husband and wife, O.M. Hubbard, a single woman and I.M. King, a single man all as joint tenants with rights of survivorship. Jill Hill and I.M. King die.
Do we need probate?