Joint Tenancy and Community Property With Right of Survivorship Explained
The right of survivorship is an important legal right that allows property owners to keep property in the event of the co-owners death. Property held as joint tenancy, tenancy by the entirety, or community property with the right of survivorship automatically passes to the surviving property owner without going through the probate process. There is a difference between joint tenancy and community property with right of survivorship. Below is a detailed overview of the benefits of holding property with the right of survivorship as joint tenants or community property. Read on to learn more.
Joint Tenancy Overview
In California, most married couples hold real property as joint tenants with right of survivorship. Joint tenancy is a type of co-ownership of real or personal property between two or more persons in which each person owns an undivided interest of the whole. Because joint tenancy creates a right of survivorship, upon death, a party’s share of property will pass to the remaining joint tenant. For example, when a married couple shares real property as joint tenants, both spouses share equal ownership interest in the property. Upon the death of a spouse, his/her interest will automatically pass to the surviving spouse. The surviving spouse will be left with 100% share of the property. Because the surviving spouse automatically receives the property, probate can be avoided (at least until the surviving owner passes away).
Community Property with Right of Survivorship Overview
Similar to joint tenancy with right of survivorship, community property with right of survivorship ensures a surviving spouse receives the deceased spouse’s property share. Community property tenancy allows couples to own an undivided interest in the entire property. Spouses are not allowed to pass their property interest to someone other than their spouse in a will. This type of tenancy is restricted to married couples and registered domestic partners. Property will automatically pass to the surviving spouse without having to go through the probate process.
Difference between Joint Tenancy and Community Property with Right of Survivorship in California
When property is held as joint tenants in community property states, each spouse is prohibited from willing away his/her property interest. The spouse’s share of property is automatically given to the surviving spouse.
When it comes to paying taxes, talk to a tax consultant about the various tax implications as it pertains to property owned as joint tenants vs. real property held as community property with right of survivorship. There may be capital gains implications that you should be aware of.
Tenants in Common
Tenants in common is another way co-owners can take title to property. This default title will be implied between parties if no other title is specified. As a tenant in common, each party will own a specified portion of property pursuant to their ownership interest. Upon the death of a tenant in common, his/her share will pass according to the instructions of his/her will, or through intestate succession (if there was no will).
Married couples should consider the form of title of their jointly owned property. The forms of ownership mentioned above are some of the many and should be considered in the context of a couple’s estate planning desires. At A People’s Choice, we can help prepare the legal documents you need to set up the form of property tenancy that suits your estate planning needs. Picking the right type of tenancy can protect your property from the probate process and make sure your spouse obtains your home upon your death. Contact us for more information about the different real estate titles available to married couples and registered domestic partners in California.
My husband died September 23,2015. A surplusfund for the sell of our home is available to me. But the company who took and auctioned the home wants me to file probate. All other assets were left to me, without contest. Why do I have to, and why does this company insist that I do.
You did not indicate the amount of surplus from the sale that is due you. This would make a difference of what type of proceeding you might be able to use to settle your husband‘s estate. Please feel free to give our office a call at 800-747-2780.
As a married couple in CA is it better to hold title as community property with right of survivorship or as joint tenancy when it comes to tax purposes? We are currently in escrow and want to make the right choice!
Unfortunately, since we are not attorneys we cannot give you legal advice. Check with your CPA or a lawyer.
Your explanation of Joint Tenancy and Community Property with Right of Survivorship is excellent, but it leaves open the question of whether they actually mean the same in California and if that word “SURVIVORSHIP” has to be spelled out -or- if simply the statement “husband nad Wife, joint tenants suffices.Would you please kindly respond to me as I am in Hawaii and have no access to a competent sourse to answer this question. Thank you.
This is a legal question that would have legal ramifications. There is specific required wording for various types of title holding. If you are unclear, I would speak to an attorney.
as a married couple over 8 years does all the assets are combined as one. example my name is on the property not my wifes name should this mean in california we both own the property
It’s hard to say but an attorney should be able to give you more specific legal advice on this issue.
My Brother passed away and he has a vehicle that I would love to hold I would love to hold onto because it’s the last thing that I have left my brother to hold on to memories in that truck and I really want to have it, just wondering how do I go about this just transfer title but does the truck have to be involved in any type of probate it’s a newer F1 50 so if you could please give me any advice I appreciate it thank you
Hi Tony – we could certainly help you with this required documentation. Just give our office a call at 800-747-2780