New York Estate Planning & Elder Law Blog
When titling property pertaining to estate planning, there are many considerations to make in order to properly distribute assets and property to your loved ones upon your death. Depending upon your estate planning measures, you make seek to title property in order to pass automatically to a lineal descendant, in order to avoid probate, or in order to allow your executor to sell, gift, or transfer your interest in property.
Ownership
Sole ownership, the title position in which you are the sole owner of the property, is the most common form of ownership for single individuals. They have full rights to property while alive and also to pass at death. This type of title will pass subject to probate, by the decedent’s will or if they fail to execute a will, by intestate, also known as the process by which a court will determine your estate execution.
Tenants in Common
This type of title ownership is best for multiple owners of a property. All owners have separate interests in the property but those interests are undivided, but also may be unequal. Once a co-tenant sells, gifts, or transfers their interest during their lifetime or upon their death, the tenancy is severed and then becomes a joint tenancy or a tenancy by the entirety, depending on the situation.
Tenancy by the Entirety
Tenancy by the entirety is title ownership best suited for spouses. This title is not able to pass down after death to another heir, it is owned by the couple and thus becomes full ownership of the surviving spouse upon the other’s death, making it a sole ownership at that point. Since this title is owned by both spouses equally, the interests cannot be partitioned, which protects from creditors in the event they come to collect the debts of one spouse. Tenancy by the Entirety protects the couple from individual debt collection for property in this scenario.
Joint Tenancy
Title under joint tenancy means that multiple individuals own a property with an undivided interest in the property, as well as with their rights of survivorship. Joint tenancy avoids probate because at death it either goes back to the surviving joint tenants or that individual’s share may be passed down to a named beneficiary. When it comes to ways in which to avoid probate, this is the most common; a tenancy in common also becomes a joint tenancy in the event that rights are severed, making it a common asset titling option.