Real estate can take on different forms of ownership depending upon the number of parties and the unique circumstances involved. Understanding how your real estate is owned, or “titled,” is necessary because this determines the extent of control you have over your real estate, how susceptible your property is to creditors, and what will happen to it upon your death. Below are some of the common ways in which real estate is owned.
One of the most common ways people own real estate is individually. As the sole owner, you have full control over the real estate. You can transfer it to anyone and can mortgage it. However, although the bankruptcy code offers some protections for personal residences, should you have creditor issues, the real estate could be vulnerable to being taken to satisfy debts or creditors’ claims. Additionally, at your death, the real estate will be transferred to the individual(s) named in your will (or trust) or according to state law, both of which will require probate court involvement to transfer ownership to your heirs. This can be a time-consuming, public, and expensive process for your loved ones (especially if the real estate is very valuable).
Tenants in Common
When several people own real estate as tenants in common, the entire property is owned by the group, meaning that no one person can claim ownership of a specific portion of it. Yet the ownership does not have to be equal. One person can own a 25% interest (i.e. “share”) while the other has a 75% ownership interest. Each co-owner is free to transfer or mortgage their interest as they wish. However, the more co-owners, the higher the possibility for creditor issues. Although creditors can only collect from the co-owner that owes them money, they may be able to force a sale of the real estate to satisfy their claim. Upon a co-owner’s passing, their ownership interest will transfer to whomever the co-owner has specified in the owner’s will or by state law if no estate plan was prepared. Both options require the real estate to go through the probate process to transfer ownership to the co-owner’s heirs.
For this type of ownership, also known as “joint tenancy with right of survivorship,” two or more individuals own an equal and undivided interest (share) in the real estate. When one of the owners dies, their interest automatically passes to the remaining co-owners, and the survivor(s) continue to own the real estate. Each co-owner is able to transfer their interest to another person, but the new co-owner does not become a joint tenant (with right of survivorship) but rather a tenant in common (whose interest does not automatically transfer to the surviving owners upon their death) with the original co-owners. One downside of joint tenancy is creditor exposure. Because there are multiple co-owners, creditors of any of the co-owners can go after the co-owner’s interest in the real estate to satisfy their debts or claims. The creditor may be able to force a sale of the real estate, even though the other co-owners may be against it. As mentioned before, a benefit of this type of ownership is that ownership is transferred automatically at death, avoiding probate. However, if you become the sole owner, then you will face the issues associated with owning real estate individually.
Tenancy by the Entireties
In some states, real estate received or purchased by spouses can be owned as tenants by the entirety. Although some of the applicable state laws still refer to the parties as husband and wife, with the proper language in a deed, which clearly demonstrates the desire to own the real estate as tenants by the entirety, all individuals who are legally married at the time they receive the real estate are able to own it as tenants by the entirety. This type of ownership can apply to any real estate, not just the primary residence. Because spouses are considered one unit, one spouse cannot transfer or mortgage the real estate without the other spouse’s consent. However, this also means that a creditor of one spouse cannot go after real estate that is owned as tenants by the entirety (with the possible exception of a federal tax lien) to satisfy the creditor’s claims. At a spouse’s death, the surviving spouse will automatically become the sole owner. This keeps the real estate and its value out of the probate proceedings, but as the sole owner, the surviving spouse will face the issues associated with owning the real estate individually.
In a Trust
Another option for real estate ownership is to transfer it to or have it purchased by a trust. As the trustmaker, you can establish rules for the use of the real estate, appoint a person (sometimes yourself) to oversee the maintenance of the real estate while allowing others (sometimes yourself) to enjoy it. However, it is important to note that the control and benefits can vary depending upon what type of trust is being used. If the real estate is in a revocable trust, then you will have the utmost freedom to manage and use the real estate if you appoint yourself as the trustee and name yourself as a beneficiary. But if it is in an irrevocable trust for asset protection purposes, the selection of the trustee and beneficiarie