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CONCURRENT
CO-OWNERSHIP INTEREST
Disclaimer:
The comparisons shown below are provided for informational purposes only.
This chart should NOT be used to determine how you acquire
your ownership in the property. It is strongly recommended that you seek
professional advice from an attorney and/or your tax advisor to determine
the legal and tax consequences of how your title should be vested. |
| |
Community Property |
Community
Property w/Right of Survivorship |
Joint Tenancy |
Tenancy in Common |
Partnerships |
Trust Arrangements |
Community Property Trusts |
| PARTIES |
Only husband
& wife |
Only Husband
& Wife. Both should sign the acquisition Deed to accept this special form
of vesting |
Any number of
persons. Can be husband & wife alone-or with others-no corporations-no
partnerships |
Any number of
persons and/or corporations & partnerships |
Any number of
persons and/or corporations & partnerships MUST be at least two. |
Any
individual, group, partnership or corporations. Other special
requirements. |
Only husband
& wife |
| DIVISION OF INTEREST |
Ownership &
management of property is equal. |
Ownership &
Management of property is equal. |
Interests are
equal and undivided. Yet each person controls their own interest. |
Ownership can
be divided into any number of interests equal or unequal. |
Each
partner's
share is personal property in partnership entity. |
Ownership is
a personal property interest & can be divided into any number of interests |
Property
retains its character of community property. |
| TITLE |
Title is in
the
community.
Each interest is separate but management is unified. |
Title is in
the Community subject to special survivorship right. |
Ownerships is
joint. Sale by one severs tenancy as to others. |
Each co-owner
has a separate legal title to his/her their undivided interest. |
Ownership is by partnership
entity only.
|
Title is held
by trustee(s) pursuant to the trust agreement. |
Title is held
by trustee(s) pursuant to the trust agreement. |
| POSSESSION |
Both
co-owners have equal management & control |
Both
co-owners have equal management and control. |
Equal right
of possession. |
Equal right
of possession |
Possession by
partnership by managing partner(s). |
Depends on
provisions in trust agreement. |
Depends on
provisions of trust agreement. |
| CONVEYANCE |
Requires
written consent of other spouse-or actual conveyance by deed.
Separate interest is devisable by will. |
Require Both
spouses to join for valid, conveyance except for security for attorney’s
fees. However the estate may be severed as in joint tenancy by one spouse
conveying to themselves. |
Conveyance by
one owner severs the joint tenancy-but only as to that owner’s
interest. |
Each
co-owner's
interest may be conveyed separately by its owner. |
Conveyance
MUST be by designated general partners. All limited partners need to
consent if sale is 100% of assets |
Designated
parties in the trust instrument authorize the trustee to convey property.
Also, a beneficiary's
interest may be sold separately(as personal property) unless restricted. |
By the
trustee pursuant to the powers contained in the trust instrument. |
| PURCHASER'S STATUS |
Purchaser can
only acquire entire 100% of title of community. Both spouses must
consent or convey. Cannot be a co-owner with other's
spouse. |
Purchaser can
only acquire 100% of the title. Both spouses must convey. Cannot be a
co-owner with other spouse. |
Purchaser
will become a tenant in common with the other co-owners in the property as
to the purchasers interest. Other owners may remain joint tenants. |
Purchaser
will become a tenant in common with the other co-owners in the property |
Purchaser
acquires interest that partnership owned. |
Purchaser
acquires interest held by the trustee. Beneficiary's interest
may be conveyed separately (as personal property) unless restricted. |
Purchaser
acquires the interest held by the trustee. |
| EFFECT OF DEATH |
On the death
of the first spouse half interest belongs to the surviving spouse. Other
half interest is devisable by will, or passes by succession under Probate
Statutes. |
On the death
of the first spouse the undivided half interest passes to the surviving
spouse, just the same as joint tenancy no separate interest is devisable
by will. |
|
|
Partner’s
share in partnership is devisable by will or passes by succession under
Probate Statutes. May cause dissolution of partnership dependent on terms
of partnership agreement. |
Depends on
terms of trust instrument. Death of trustor may terminate or convert
trust to other arrangements. Successor beneficiaries may be named in the
trust instrument. |
Trust
instrument may provide for distribution on death of first spouse.
Spouse's
half interest may be devisable by will. Surviving spouse may elect to have
their interest put under testamentary trust. Seek advice of counsel. |
| SUCCESSOR'S STATUS |
If first
spouse's interest is devised by will or passes by succession, remaining
spouse and devisees or heirs hold title as tenants in common. |
Due to
survivorship right. The surviving spouse owns 100% of the title. |
Unless joint
tenancy is broken, last surviving joint tenant owns entire property
interest, which is now devisable by will |
Heirs or
devisees become tenants in common with other owners. |
Heirs or
devisee have rights in partnership interest but not in specific property. |
Depends on
terms of trust instrument. Trust may terminate or other trust
arrangements may be created. |
Distribution
depends on the terms of the trust instrument. |
| CREDITOR'S RIGHTS |
Property of
the community is liable for debts of either spouse made before or during
marriage. Entire property may be sold at execution sale to satisfy debt
of either spouse. |
Property of
the community is liable for debts of either spouse made before or during
marriage. Entire property may be sold at execution sale to satisfy debt of
either spouse. |
Each owner’s
interest is subject to execution sale to satisfy debt. Joint tenancy is
broken. Buyer at sale (usually creditor) becomes tenant in common with
other owners. |
Each owner’s
interest is subject to execution sale. Buyer at sale (usually creditor)
becomes tenant in common with other owners. |
Partnership
real property only subject to execution sale by partnership creditor.
If debt of individual partner, only that partner's share (personal
property) is subject to execution sale. |
Creditor
needs to obtain a final court order for any execution sale of the
beneficial interest-or an order to have specific trust property to be sold
to satisfy the debt. |
Creditor
needs to obtain final court order for execution sale to satisfy the debts
of either or both spouses. |
| PRESUMPTIONS |
Strong
presumption that any property acquired by either husband or wife during
marriage is community property. |
Property is
specifically stated in the deed to be community property with right of
survivorship. |
MUST
be expressly stated that property acquired as joint tenancy |
When
conveyance is unclear, tenancy in common is presumed, unless community
property presumption applies. |
Should be
clear from conveyance that grantees have partnership status. If not,
could be found to be tenants in common. |
Trust
arrangement is ONLY created by written instrument. Conveyance MUST be to
trustee of the trust. The trust itself is NOT a legal entity capable of
holding title. |
Property is
still presumed to be community property. Status may change upon death,
dissolution of marriage or revocation of the trust. |