Right of survivorship is an important legal right that allows property owners to keep property in the event of the co-owner’s death. For example, 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. That said, there is a difference between joint tenancy and community property with right of survivorship.
Joint Tenancy: An 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 instance, many married couples share real property as joint tenants. This way, upon the death of a spouse, the surviving spouse will own 100% share of the property. This process avoids probate altogether.
Community Property With Right of Survivorship: An 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. However, spouses may not pass their property interest to someone other than their spouse in a will. Unlike joint tenancy, community property with right of survivorship is restricted to married couples and registered domestic partners. That said, like joint tenancy, property automatically passes to the surviving spouse without having to go through probate.
Tenants in Common
Tenants in common is another way co-owners can take title to property. In fact, parties will automatically assume this title if they do not select another. As a tenant in common, each party owns a specified portion of property pursuant to their ownership interest. Finally, upon the death of a tenant in common, their share will pass according to the instructions in their will. Otherwise, if there is no will, the share will go through intestate succession.
At A People’s Choice, we can help prepare the legal documents needed 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. Plus, it can ensure 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 parents purchased 4 plots at Forest Lawn Cemetery in CA about 1960. Mom died in 1975. Dad remarried in 1976. He included his wife’s name on the deed. Dad died in 1980. His second wife died in 2008, was cremated and ashes scattered at sea. She has no children. Her parents have passed. She had 2 siblings that have died. Forest Lawn wants to know if her siblings had children. The family was in Michigan. I have no personal information of her family. All information I have came from online research. How can I obtain possession of the 2 remaining plots in Forest Lawn? Does it need to go into probate? There were no Wills.
It is hard to say. It would seem that the heirship would go down the line of the new wife’s family. Talk to an attorney on this.
Hello, Sandy. I bought a house in California in 1995. I paid for all expenses (downpayment, closing, etc..) however, my grandma helped me finance the house with a bank. She passed away about 4 yrs ago. I never looked into the grand deed, until recently. It reads…both of our names with a prase “unmarried person”. It does not say anything about right of survivorship. Can i be the executor? Would i have to pay taxes? My uncle n aunties r ok with not contesting this estate. Any other advice. Thanks.
It sounds like you may have to probate your grandmother’s estate. We can help with this process at a much lower cost than attorneys charge! Call us at 800-747-2780.
We have a quick claim deed that list my mother-in-law, my wife and myself has community property with right of Survivor ship and I am not sure after reading your article if that’s possible in the state of California and if it is what are the ramifications.
This does not sound like correct title as community property interest typically pertains to married people and obviously you are not married to your mother-in-law. You may want to have this looked at.
My daughter, her husband, and I own a house (may worth $400k）as joint tenant in California. I live in this house for more than 10 years. However, my daughter has her own house and does not live with me. I understand that I do not need to pay tax as capital gain when I sell the house. Is it necessary for my daughter to pay tax on capital gain since this house is not her residence. If yes, how to determine the percentage she and he should share?
Talk to a CPA regarding thus tax 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
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.
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 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.
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.