For many, part of the “American Dream” is owning real property. Prior to completing the purchase a buyer is typically asked by his real estate agent, and later by the title company handling the sale, how title is to be held.
Titling is held as important for a variety of reasons. Understanding the difference between sole proprietorship, joint tenancy, tenants-in-common, and community property impacts creditor protection, estate planning, and marital dissolution issues.
Sole ownership means just that … title is vested in one person or entity. The buyer will sign as a single individual (having never been married) or an unmarried individual (widowed or divorced,) or a married individual acquiring an interest as sole and separate property with the other spouse relinquishing all right, title or interest.
Tenancy-in-common allows any number of persons to hold title together with each having a divided interest, equal or unequal. This form of ownership is common among business owners, parents and children, and unmarried domestic partners.
Since one co-tenant cannot act on behalf of another, and they are not liable for the acts or omissions of other co-tenants, creditors can assert a claim against only a portion of the property evidenced by a co-tenant’s interest.
For estate planning purposes, a co-tenant has all the rights of a sole owner for his/her portion of the property, including the power of appointment to give his interest away while alive or leave an interest by will at death. For gift or estate tax purposes, the value of a co-tenant interest may be discounted if the new co-tenant does not enjoy the total ownership of the property.
Joint-tenancy differs from tenants-in-common in that the property ownership interests, which can be owned by any number of persons, cannot be divided. There is only one title to the property and all owners have equal rights of possession. Upon the death of an owner, that person’s ownership interest ends and cannot be willed or given away. The survivor(s) retain all ownership interests.
A common mistake made by parents is to put children on property as joint tenants thinking that by doing so they can pass the property without going through probate. The latter is true, however in doing so they create a taxable event in that the transfer of a joint tenant interest is considered a gift requiring the filing of a gift tax return. Also, this exposes the property to creditor claims of any joint tenant.
Since a joint-tenancy arrangement passes the property to the surviving joint tenant, the decedent tenant has no power of appointment over that property at death. Parents holding property in joint-tenancy have effectively disinherited their children since the first-to-die parent cannot appoint his/her interest in the property to an heir by means of a will.
Finally, when a joint tenant dies, the surviving tenant is deemed to have received a gift from the deceased of one half of the value of the property. This inherited half receives a stepped-up cost basis equal to the value of the property at date of death. Unlike community property, the half interest retained by the surviving joint tenant retains the original cost basis.
Community property states, such as California and Washington, treat property held and titled by married couples as community property similar to joint tenancy with two very important exceptions. At the death of the first spouse, the decedent has full power of appointment, or the ability to give his/her interest to whomever he/she pleases. Most commonly, the property will be left to the surviving spouse to use for the rest of his/her life, then be passed to the children. Finally, at death, the property receives a full stepped-up cost basis, enabling the surviving spouse to sell the property without a capital gains tax.
Bruce Fenton is a financial consultant, a writer, and the Managing Director of Atlantic Financial Inc. Bruce welcomes inquiries, comments, and questions. He can be reached by contacting The Fenton Report.