Real Estate and Probate: Methods of Holding Title

by Judy Szablak 06/28/2020

Photo by Jonny Lindner via Pixabay

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 buy 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.

About the Author
Author

Judy Szablak

With over 30 years in the industry, Realtor Judy Szablak has been on national television for her real estate expertise on the HGTV Network, featured on Martha Stewart Living Radio "Morning Living” , NPR radio as an expert real estate panelist, It’s Relevant News channel, and quoted in the Wall Street Journal for her in depth knowledge of Fairfield County Connecticut real estate.

She was also on the local NPR radio station (WSHU) as a Fairfield County CT real estate expert. Judy has provided multiple online respected news sources with her real estate expertise including The Daily Easton, The Daily Weston, The Daily Fairfield, The Daily Stamford and The Daily Greenwich, as well as in print in the New York Post. She is a weekly Real Estate Columnist for WestportNow.com, another real estate column "Real Estate With Judy” is syndicated through Hearst CT Media Online and seen in The Connecticut Post, The Danbury News-Times, The Stamford Advocate, The Greenwich Time, The Hour, Fairfield Citizen, Westport News, Darien News, New Canaan News and the Wilton Villager.

 Judy is also the author of the book, The Art of Buying or Selling a Home, available at all major book retailers. Additionally, Judy has been nationally recognized in a number of national real estate trade magazines, some with distribution to over 1 million members. She was featured in Real Estate Today as early as 1994 for her commitment to, and implementation of technology in real estate. Judy appeared in the Certified Residential Specialist Magazine, as she provided advice on marketing strategies and ethics in the article titled "Marketing Makeovers.”

 Judy was also featured in REALTOR® Magazine, regarding image enhancement for Realtors. She was again featured in REALTOR® Magazine, in an article on "Achieving Flow” and operating at optimal peak performance. In another article in the same publication, Judy offered guidance to fellow real estate professionals as she explored the topic of implementing and maintaining personal websites. She has appeared in The Council of Residential Specialists Magazine, which featured her ideas regarding technology. Additionally, Judy authored an article on marketing and technology for the Certified Residential Specialist (CRS) Online Magazine. On two occasions, in 2015 and 2017, she appeared as a featured agent in Top Agent Magazine. I have a few other websites- www.TheCtrealtyBlog.com www.CtHomesAndRealEstate.com www.BestWestportHomes.com www.ThePetitePowerhouse.com www,SzablakConsulting.com