Common Vesting Options Defined
The following is for informational purposes only. You should base your decision on your attorney’s and/or accountant’s advice.
Tenancy In Common
The right of survivorship does not exist when title is vested as tenants in common. Upon the death of a spouse or other individual tenant in common, the deceased’s interest will be probated and distributed by will, or where no will exists, by intestate succession to family members. Tenants in common may also hold unequal interest in the property.
As joint tenants, each party owns undivided equal shares in the property. When either party dies, title passes to the surviving joint tenant, without the need for probate. Recording a certified copy of the death certificate, together with an “Affidavit of Death of Joint Tenant” clears title of the deceased’s interest.
Community property is property acquired by a husband and wife (or domestic partner) when not acquired as the separate property of either spouse/domestic partner. Vesting a husband’s and wife’s (or domestic partner’s) community property as “community property” provides no rights of survivorship, as does joint tenancy. Also, a couple’s assets vested as community property must be probated. Through a will, a husband, wife or domestic partner may leave their one-half share of the community property to whomever they elect.
Community Property With Right of Survivorship
When one spouse or domestic partner die, the property will pass to the survivor without administration-just like with joint tenancy-and the property will receive a full step-up in basis. Thus, this new form of title has incorporated the benefits of both previous forms of title to the surviving spouse (or domestic partner) without the negative aspects.
As you can see, the decisions regarding how to take title can have dramatic consequences. Only the buyers can determine vesting of title, after careful consideration of their specific needs.