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When you purchase real estate, you need to decide how you want to hold the title. Many closing agents make an assumption, and that assumption may come back to bite you later in life. In most states, you may title real estate in five ways: sole ownership, joint tenancy with the right of survivorship, tenancy in common, tenants by the entirety, and in a living trust. If one of you should pass, you may not be able to avoid probate if the title to your real estate shows that you don’t own full interest in the property.
Methods of Holding Title
The methods of holding title determine whether you are able to avoid probate in many states for your primary residence.
Sole ownership means that you own the real estate yourself. If you are single, you may have your name listed as the sole owner of the property. If you are married, you may still hold the title as the sole owner, but you would be the only spouse who is liable for the financial burden.
Joint tenancy with the right of survivorship means that at least two people by the property and have their names listed on the deed. Each person owns an equal piece of interest in the property. If one person passes, their share goes to the other person. If more than two people are listed, the decedent’s share is divided equally among all of the people listed on the deed. This is the only way that your primary home has a chance to avoid going through the probate process unless you hold the property in a living trust.
Tenancy in common is used when two people buy a property together. Generally, the two people are not married. Each person owns their share separately from the other. This is where closing agents and attorneys make the mistake of not asking the buyers how they want to be listed on the deed. If you own a property as tenants in common and one person dies, the real estate must go through probate. If you are married and do not want your share to go to your spouse automatically, then you would instruct the closing agent to list the owners as tenants in common.
Tenants by the entirety is only available in some states. This method of ownership means that both spouses own the property. One cannot sell the property without the agreement of the other. If a creditor is going after one spouse for a debt that is not owned by both parties, the creditor is barred from attaching a lien on the real estate.
The Living Trust
Regardless of how you hold title to real estate with your spouse, if the property is transferred to a living trust, the property then passes to your beneficiary postmortem. The property does not need to go through probate. However, if you use a pour-over will, which means that the property is not in the trust, but automatically transfers to the trust upon your passing, many states require probate before the property changes hands. If you are considering using a living trust, contact a probate attorney to help you set this up so that it is done correctly.