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Community Property Rights Related Questions

What is community property? What are the differences between 'joint tenancy' and 'community property?' Purchasing property is a big decision that can lead to many legal questions. It is important to know the proper way to take the title in order to protect yourself. Experts are available to assist you. Read below where Experts have answered questions for prospective buyers or sellers.

What is community property?

By definition 'community property' means 50/50 ownership.

In California, does a couple need to be married or in a registered domestic partnership to own their primary residence as community property?

Property cannot be considered community property if there is no legal relationship between the parties, but this is easy to accomplish. The couple can sign a Deed to the property with both names listed “with rights of survivorship.” Then if one party dies, the other party will get the property without the need for probate or a Will. Even with a Will the property will pass to the other party outside of the terms of the Will. A Deed can be prepared and filed at a very low cost by any real estate title agency.

Which is recommended for tax purposes, community property or joint tenancy?

Community property with rights of survivorship is best for tax purposes.

What is the difference between 'joint tenancy' and 'community property?'

  • Joint tenancy is when two or more persons are named on the title to property. The joint tenancy can come in different forms, such as 'with survivorship' or 'as tenants in common.' In a joint tenancy both names must be on the title to the property.
  • Community property is a concept used in several states to define the interest married persons have in property owned by each other. It would include jointly held property, as well as, property only owned by one of the parties, but is acquired during marriage. In general, all 'joint' property would also be community property, but not all property held in only one name would be community property. Property owned prior to marriage, or that is inherited during a marriage, and kept separate and apart from the other spouse would not be community property.

In California, in a Deed using community property with rights of survivorship, does each party have the right to transfer any of his/her interest?

Yes and no, community property with the rights of survivorship is a tool designed to allow the property to pass, after death, to the surviving party. Yes the owner can devise or put in a Will his or her interest in the property, but it will need to go through probate to be divided.

Using a Will, can a person give away his/her portion of community property?

Yes, the testator (the person making the Will) has the power to devise his or her portion of community property.

How should a property title be vested so a married couple can pass it to their children if they both die, but still allow the couple to sell the property if they wished to do so?

In order to make sure the children receive the property, the husband and wife would need to execute a Deed to the children reserving a life estate. This means the children would be fee simple owners of the property, but the husband and wife (parents) would have the right to occupy the property for the rest of their lives. This will also protect the property from creditors and take it out of the estate of the husband and wife, which are both good things. If the husband and wife later wish to sell the property, the children will have to sign off on the sale.

In a divorce, what property is considered to be community property and what can be considered separate property?

All property on hand at the time of divorce is presumed to be community property. If either husband or wife want to claim property as separate property, he or she will have the burden of proof.

In regards to community property, what does 'tracing' mean?

'Tracing' is a legal principle that involves trying to prove that community property is actually separate property. In other words, an attorney or accountant starts with the funds that were used to purchase the property during the marriage and tries to trace those funds back to the point where they were separate property. This is how the husband or wife can carry his or her burden of proof that property on hand at the time of divorce is separate and not community.

Many legal questions may arise when purchasing or taking title to a piece of property. Contacting a real estate lawyer can be quite expensive and not always convenient. Experts can be the next best thing to steer you in the right direction. If you have other questions regarding real estate issues, Experts are available to assist you.

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