Forms of Property Ownership
The manner in which a person may hold title to assets or real estate varies. Property may be held individually, jointly, or in a trust.
A person may hold property by himself. Sole ownership offers flexibility as to the management and disposition of that property. All solely owned property is considered part of the owner’s estate for tax and probate purposes.
Concurrent ownership occurs when two or more people own property together. There are various forms of co-ownership requiring different responsibilities and resulting in different consequences.
Joint Tenancy with Rights of Survivorship
Joint tenancy is a form of ownership that allows two or more persons, such as business partners, spouses, children, or siblings, to jointly own property. Joint tenants each have an undivided interest in the property, but each joint tenant’s actual ownership is limited to his fractional share of the value of the asset. When one of the joint tenants dies, the interest passes, without the need for probate, to the remaining joint tenants.
In order for a joint tenancy to arise, the joint tenants must own the same fractional share of the property, they must have obtained ownership all at the same time, they have the same rights to the property, and the interest in the property must have been obtained pursuant to one contract.
One potential disadvantage to this form of ownership is that each joint tenant may have a right to transfer his interest without consulting the other joint tenants. Creditors may attach this interest, and if the interest cannot be divided, a forced sale of the property may occur to satisfy the creditor may result.
Joint Tenancy by the Entirety
This type of ownership is similar to a joint tenancy with rights of survivorship except that it can only arise in the context of a marital relationship. The main difference between the two is that in a tenancy by the entirety each spouse owns the entire asset and its entire value, not just a fractional share of the value.
Tenancy in Common
This type of ownership is used by both married and unmarried couples. Each of the tenants owns an undivided interest in the property. Usually, the interest each person owns is proportional to the number of co-tenants. When a co-tenant dies, the share does not pass to the other tenants, but passes through probate and to his heirs. A creditor may claim against a co-tenant’s share to satisfy a debt.
A trust may own real estate. There are different types of trusts. A revocable trust, also known as a living trust, is formed during the grantor’s lifetime. A testamentary trust is formed as part of a will. Because a living trust is revocable, creditors may still reach the trust to satisfy a debt and estate taxes may apply.
There are various ways in which a person may hold title to real property. A person may hold property by himself or may hold property concurrently with other owners. The concurrent forms of ownership are joint tenancy with rights of survivorship, joint tenancy by the entirety, and tenancy in common. Each form of ownership has distinct advantages and disadvantages and care should be taken in selecting which form best suits a person and his situation.