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Lane
Lane, JD, CFP, MBA, CRPS
Category: Tax
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Experience:  Juris Doctorate, CFP and MBA, Providing Financial & Tax advice since 1986
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Tax: Usually married people hold title to a residence as "joint

Resolved Question:

Tax: Usually married people hold title to a residence as "joint tenants" now there is another way to hold property as "Community property with right of survivorship".
Can you tell me what this is and which way is best for married people?
Thank You,
Fred
Submitted: 1 year ago.
Category: Tax
Expert:  Lane replied 1 year ago.


Hi,

First, property ownership is a state law issue, and different states recognize different types of the various forms of common law ownership and various evolutions and hybrids.

Community property with a right of survivorship vests the surviving spouse with outright ownership of the decedent's one-half community property interest just like joint tenancy with the relative tax advantages of holding title as community property. If a joint tenancy accomplishes your objectives, community property with a right of survivorship might be even better because it not only avoids probate but can provide a step-up in basis.

However, holding title as community property with right of survivorship is not always superior to holding title in joint tenancy between spouses because certain creditor's claims (e.g. not consensual secured loans) against the deceased spouse are cut off. Upon death of a joint tenant, the jointly held property will then pass to surviving spouse not subject to these creditor's claims unlike title to property held in community with right of survivorship property.

Further, community property states are by far in the minority: (There only nine)

Arizona
California
Idaho
Louisiana
Nevada
New Mexico
Texas
Washington
Wisconsin

Here's a great article on that:http://taxes.about.com/od/taxglossary/g/CommunityProper.htm




Joint Tenancy, is actually one of ownership from considered TENNANTS IN COMMON:

Tenancy in common a specific type of concurrent, or simultaneous, ownership of real property by two or more parties. Generally, concurrent ownership can take three forms: joint tenancy, tenancy by the entirety, and tenancy in common. These forms of concurrent ownership give individuals a choice in the way that co-ownership of property will be carried out. Each type of tenancy is distinguishable from the others by the rights of the co-owners.

Usually, the term tenant is understood to describe a person who rents or leases a piece of property. In the context of concurrent estates, however, a tenant is a co-owner of real property.

All tenants in common hold an individual, undivided ownership interest in the property. This means that each party has the right to alienate, or transfer the ownership of, her ownership interest. This can be done by deed, will, or other conveyance. In a tenancy by the entirety (a concurrent estate between married persons), neither tenant has the right of alienation without out the consent of the other. When a tenant by the entirety dies, the surviving spouse receives the deceased spouse's interest, thus acquiring full ownership of the property. This is called a Right of Survivorship. Joint tenants also have a right of survivorship. A joint tenant may alienate his property, but if that occurs, the tenancy is changed to a tenancy in common and no tenant has a right of survivorship.

Another difference between tenants in common and joint tenants or tenants by the entirety is that tenants in common may hold unequal interests. By contrast, joint tenants and tenants by the entirety own equal shares of the property. Furthermore, tenants in common may acquire their interests from different instruments: joint tenants and tenants by the entirety must obtain their interests at the same time and in the same document.




And again, some states recognize some of the ownership forms and some recognize others.

Property law (whether dealing with real property or personal property) is the oldest and most convoluted body of law.

If you are in a community property state (when dealing with property owned by spouses, you must start with the implications of community property itself).


Let me know if you have questions

Lane
Lane, JD, CFP, MBA, CRPS
Category: Tax
Satisfied Customers: 4488
Experience: Juris Doctorate, CFP and MBA, Providing Financial & Tax advice since 1986
Lane and other Tax Specialists are ready to help you
Expert:  Lane replied 1 year ago.


Thanks so much Fred.

Let me know if I can help again!

Lane

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Juris Doctorate, CFP and MBA, Providing Financial & Tax advice since 1986