Recently an escrow advised me that my married clients were taking title as joint tenants, and I instructed them to please change vesting to Community Property with Right of Survivorship.
Why???? This vesting allows the "basis" in the property, for income tax purposes, to be "stepped-up" as of the date of passing of one of the title holders. It is preferable for all married property owners, unless they have a Living Trust.
A Living Trust is probably the best way to hold title. The primary advantage is to avoid the costs of probate, as all assets in the trust, including real estate, pass directly to the successor trustee and/or beneficiaries without lengthy and expensive legal work. I find that today most of my clients here in California having Living Trusts. Uber important for anyone with children!
Joint Tenancy can be held with anyone else. You can be a joint tenant with a spouse, a mother, brother, father, sister or friend. All owners have equal ownership of the property, and the surviving co-owner(s) automatically own the entire property. Probate is avoided with this form of ownership, but it does not automatically step up the basis in the home for the survivor.
Tenants in Common is a form of ownership for two or more property owners, and the percentage of ownership may be split any way they like. This might be used for unmarried friends or business partners; for families who want to be able to leave their portion of the property to the their heirs, and may be titled in a trust. Each owner may pass their interest to whomever he wants. This is popular with spouses in second marriages, so each spouse can leave their share to their own children. The downside is one of the owners may force a sale of the property, which could be problematic if children of a deceased spouse force the sale of the surviving spouse's home.
I personally hold title to one home in a living trust, and to two others as tenant-in-common. These two are held with other family members at differing percentages. I strongly recommend anyone who owns real estate to consider a Living Trust and I am happy to recommend an Estate and Family Planning attorney.
