This is the second part in a two-part series on holding title to real estate in California, and how it can impact your heirs after your death.
Two of the most common ways to hold title to real estate in California are joint tenancy, which we’ve discussed in our last post, and tenancy in common. They might sound similar in meaning, but they can actually result in vastly different outcomes at your death.
Tenancy in common entails two or more individuals owning a property together. We often see these co-owners exist as investors, siblings, or friends. Being “tenants in common” with your co-owners means that each owner has their own, specific interest in the real estate, which can be, but does not have to be, equal. For example, one individual may own 30% of a property, while the other owns 70%. In the case of three people, we may see a situation where one owns 25%, the second owns 30%, and the third owns 45%. One of the most significant differences between tenancy in common and joint tenancy is that with tenants in common, each owner can specify who they would like to will or give their interest in the property to after their death, and even lease out or sell it while they are still living. This means that in the event of a co-owner’s death, the outcome of who will be granted the interest is in favor of their heirs, even if they have not specifically willed it to anybody. Theoretically, a tenant in common could end up sharing interest in a property with anyone that the other original co-owner(s) may choose, even a stranger.
Unfortunately, unlike joint tenancy, properties in which title has been taken with tenancy in common are subject to probate, which is handled by the California Probate courts. If one tenant in common dies, his or her heirs will be required to probate that share of the property. To avoid this outcome, each tenant in common should transfer their interest into a trust.
The information on this website is for general information purposes only. Nothing on this site should be taken as legal advice for any individual case or situation. This information is not intended to create, and receipt or viewing does not constitute, an attorney-client relationship. Brittany Britton is licensed to practice law in the state of California only.