Types of Tenancies
How do the owners of real estate hold the title?
This is a critical question to answer in the deed preparation process because it determines what happens to each grantee's interest in the property when they pass away.
Tenant in Severalty.
This is how an individual (sole grantee) holds title to real property.
This is how trustees of a trust hold title to real property. It indicates that the trust documents govern ownership and how the property is treated upon death of the trustor (creator of the trust).
Tenants in Common
Multiple owners of real estate are "tenants in common" by default. This type of ownership treats each owner as having a separate and distinct interest from the other owners. Thus, when a tenant in common passes away, that person's heirs will inherit their interest in the property. So, as an example, suppose that A, B, and C own real estate and tenants in common and C passes away leaving children C1 & C2. After C's death, the owners of the property are: A, B, C1, and C2.
Joint Tenants with Rights of Survivorship
This form of ownership ensures that the property stays among the listed owners. So, if a joint tenant passes away, the other joint tenants who have rights of survivorship will take over that person's interest. This means that the heirs of the person who passes away will not get an interest in the property.
Tenants by the Entirety
This is just like Joint Tenants with Right of Survivorship, except that the owners are married.
Choosing the right type of tenancy to hold title can help your loved ones avoid the hassle and expense of probate.
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WHAT HAPPENS IF YOU DON’T PLAN AHEAD TO AVOID PROBATE?
Probate is a court proceeding and it therefore requires time and money in order to be completed properly. The costs of probate are usually paid by the estate, which reduces the amounts that heirs will receive. It also opens the door to possible disputes among family members, heirs, and disinherited heirs. While probate is ongoing, heirs are losing potential rental income or the current value of the assets. There is the risk of changes in the market that significantly reduce the overall value of the assets. And financial obligations of the estate are not paused—the estate has to continue paying a mortgage, property taxes, association fees, etc. All of this effects (and usually reduces) what the heirs are intended to inherit.
WHAT CAN YOU DO to avoid probate?
All of this can be avoided or minimized to a known quantity with a legal consultation and a few essential documents. Depending on your situation (your assets and goals) there are many options. The advantages and disadvantages of each may vary for each individual, but they are generally accurate for everyone.