Right of Survivorship in Real Property
The right of survivorship in real property is perhaps one of the most important estate planning tools.
For many people, the home is not only their most valuable asset, but it is the one asset that they rely on to secure their own future and those of their children. Owning property as joint tenants with right of survivorship, or JTWROS, assures a quick and seamless passage of that property upon the death of one of the joint tenants, or owners.
There are several ways to own real property and each state has variations of each particular form. The three most common are: tenants in common, joint tenants with right of survivorship and tenants by the entirety, or as spouses. Each has their own very important distinctions and characteristics.
Tenants in Common – Real property owned as tenants in common, TIC, is owned by each individual property owner is separate shares, i.e. 50% and 50%. The key attribute of TIC owned real property is that if one owner dies, that owner’s share in the TIC property passes into his or her estate and must pass through probate to be transferred to its successor owner. Many who own property with another person who is not a member of their family prefer to own real property as TIC so that they can pass on their share to family members upon their death. The deed to a property owned as TIC will define the owners as, “John Doe and Jane Doe.” There will be no other description on the deed.
Joint Tenants with Right of Survivorship, JTWROS – The most significant and powerful characteristic of owning property with a right of survivorship is that the joint owners both own the entirety of the property at the same time; therefore there is nothing to pas upon the death of one joint owner. The property does not go through a lengthy and costly probate process. One catch is that property which passes automatically may not be eligible for more sophisticated tax planning which could save a surviving spouse, for instance, in estate tax upon the death of the second spouse. For individuals whose assets do not meet the state or federal estate tax limits, JTWROS ownership can be an extremely beneficial and effective means of transferring assets upon death. The deed to a property owned as JTWROS will define the owners as, “John Doe and Jane Doe as joint tenants with right of survivorship,” or “John Doe and Jane Doe, JTWROS.”
Tenants by the Entirety, as spouses – This type of real property ownership is reserved for legal spouses and possesses the same protections that JTWROS ownership provides, with one distinct benefit. No creditor of one spouse may attach their interest to the other spouse’s ownership share in the home they own as tenants by the entirety. This is a critical protection mechanism to honor and provide for spouses owning property together. The deed to a property owned as Tenants by the Entirety will define the owners as, “John Doe and Jane Doe as husband and wife,” or “John Doe and Jane Doe, as spouses.”
It is critical for an attorney to review any existing deed that you may have to ensure exactly what type of real property ownership that you have. Your entire estate plan may be dependent on the characterization of your real property ownership. For more information about real property ownership, and more, contact Anthony M. Brown at Anthony at timeforfamilies.com or visit www.timeforfamilies.com today.
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