If you are like most people, your home is the highest-value asset in your estate. As a large part of your estate, you will want to make sure that your home is properly prepared to transfer to your intended heir(s) as quickly, privately, and affordably as possible.

Planning to transfer real property after your death is different than the other assets in your estate. Real property is your home, the land you own, and anything attached to the land. Unlike other assets, such as bank accounts, insurance policies, and personal property, real property ownership is shown with a deed and is recorded in the land records for the jurisdiction. 

Estate planning as a homeowner does not have to be as complicated as it seems, but it is essential that you look closely at how your property will be treated after you pass. A will alone will land your property in probate court, costing your heirs additional time and money, and it may not create the result you wish. 

As you begin thinking about estate planning and your home, start by locating your deed and taking a look at it with an attorney. The language that lays out how your property is titled has a huge impact on what will happen to your home after you die.

How is Your Property Titled?

How you own your property, or how it is titled, will have significant impacts on how the property is transferred to heirs. There are a number of ways you can hold title to real property. The most common are sole ownership, community property, community property with a right of survivorship, joint tenancy, and tenancy in common.

If you have sole ownership of your home, that means that it is titled in your name only. You own the property alone, and it is wholly included in your estate. After you pass, your property will be subject to probate and will pass to your heirs in accordance with a will or, in the absence of a will, with state law. In probate court, your home, along with your other assets, will be publicly recorded and may be subject to any debts and liabilities you may leave behind.

If you own property with a spouse or domestic partner, it is presumed that you own it as “community property.” Without specifically stating otherwise, the law will presume that both married partners equally own the real estate, and it will require both owners’ signatures on all agreements and documents transferring the property or using it to secure a loan. Under this form of ownership, each married partner is considered to own one-half of the property and can dispose of their own half however he or she wishes.

Spouses and domestic partners also have the option to hold title as “community property with a right of survivorship.” When one partner dies, title to the property automatically transfers to the surviving owner. Unmarried co-owners can also benefit from the right of survivorship by taking title to a property in “joint tenancy.” The deed must expressly declare that owners intend to hold the property in joint tenancy. Under both of these ways to hold title, all owners hold full ownership of the property collectively. At the death of one owner, whole ownership of the property remains with the other owner(s), and the property will not pass through the deceased owner’s estate, thereby avoiding the probate process. 

Co-owners who are not married and do not expressly choose to include a “right of survivorship” hold property as “tenants in common.” Tenancy in common means that each owner owns a portion of the property and holds proportionate ownership rights. Each owner may transfer and sell his or her portion of the property without consulting with the other owners. When one owner dies, his or her portion of the property will transfer to his or her heirs in accordance with a will or state law. As an example, if siblings John and Susan own their late parents’ home as tenants in common, they each own half of the property. When John dies, he leaves his estate to his daughter, Alice, in his will. His assets that are subject to probate, including this partial ownership of the property, will go through the probate process in court before transferring to his daughter. Alice and her aunt, Susan, will now own the property together as tenants in common. 

Co-owning a home with the person you intend to leave it to makes the transfer upon your death relatively quick and easy. However, this form of ownership does create some challenges of its own. First, a jointly owned property can become subject to the judgments, lawsuits, and liabilities of any of the owners. Second, all living joint tenants of a property must sign and deed or mortgage. If one owner becomes incapacitated, it can be more difficult to exercise ownership rights. Finally, because full ownership passes to the surviving owner upon the death of the other owner, the property may not continue to pass down the way that the deceased homeowner intended. For example, Bob and Katie are married and own a home as community property with the right of survivorship. When Katie passes away, Bob will be the sole owner of the home. Katie’s children from a previous marriage will hold no ownership rights to the property, and it will be up to Bob to decide whether he intends to provide for them in his estate.

Community property with a right of survivorship and joint tenancy are only created through express language in the deed and recorded in the land records. Failure to use the appropriate language will cause ownership to revert to tenancy in common or community property. Owning real property with the right of survivorship does not eliminate the need for a will. In the case that all owners of property with right of survivorship die close in time to one another, the property will then be transferred in accordance with a will through the probate process. Failure to have a written will can result in the property being transferred in accordance with state law.  

Transfer by Will: Navigating the Probate Process

Unless your estate plan transfers your home to your heirs in one of the methods that avoids probate, real property is generally subject to probate. If you are the sole owner or hold a property as a tenant in common with other owners, your property ownership is a part of your estate and will be distributed in accordance with your will. 

The primary goal of estate planning is to ensure that the person who accumulates property throughout his or her lifetime is able to decide what should be done with the estate after death. In California, state laws governing the probate process are designed to ensure that assets are distributed fairly. However, this process is costly, time-consuming, and public.  

The cost of probate is approximately 5% of the value of your estate, based on the fair market value of your home. These costs, including legal fees and court costs, can be extremely high. Going through the probate process can also take a long time, between a few months to over a year. During this time, your heirs will not be able to exercise any ownership rights over the property. Probate is also a public court proceeding, and your will, as well as descriptions of any real property you own, will become part of the public record.

Another benefit to keeping real property out of probate is that this prevents any disruption in paying bills, homeownership fees, and mortgage payments on the property. While a property is in probate, your heirs may find it difficult to get permission to continue making these payments using funds from your estate.

Planning to avoid probate and default state laws protects your assets and your heirs from court costs, legal fees, unnecessary delay, and public disclosure. Working with an attorney helps ensure that you can transfer your home to your heirs while meeting all legal requirements and preventing legal challenges after your death.

Putting Your Property into a Trust: Revocable vs. Irrevocable

One way to keep real property out of probate altogether is to create a trust. A revocable living trust allows for a property owner to transfer ownership of real property into a trust during his or her lifetime. Creating a trust allows you to create instructions for how the property is to be used, and trustees are bound to act in accordance with the directions of the trust. The grantor is no longer the “owner” of the property, so you will need to change the title of the property to show that the trust is the new owner.  You can then name yourself as the trustee, and you will retain ownership rights throughout your lifetime until a successor trustee takes over upon your death. Property held in trust is not a part of the estate for the purposes of probate, so this method does prevent a home from going through the probate process. However, putting a property into a trust does not exclude the property from the value of the estate for the purposes of taxation.

The instructions for a revocable living trust that guide how successor trustees manage assets on behalf of beneficiaries may be altered or the trust terminated during the grantor’s lifetime. Upon the grantor’s death, the trust becomes irrevocable and cannot be altered.

An irrevocable trust is one that cannot be amended or terminated as soon as it is created. As the grantor, you agree to place an asset into a trust and it cannot be undone. There are a few distinct benefits to creating an irrevocable trust for the purpose of transferring your home to your heirs. One is that an irrevocable trust shields the property from creditors and judgments. Another is that this prevents the property’s value from being included in the total value of your estate. This may matter to you if you have a sufficiently large estate as to trigger estate taxes.

Estate Taxation

Keeping a property out of probate does not affect your estate’s obligation to pay estate taxes. Your taxable estate includes any property you own at your death, whether it goes through probate or not. However, federal estate taxes are only charged if the estate is worth more than $11.18 million (in 2018). When determining your total estate value, the value of a home or any other real property will be based on the equity you have in the property. 

What if I have a mortgage or other debts?

When you meet with an attorney to discuss your estate plan, make sure to bring all documentation with you regarding your home. This includes all mortgages and financial interests in your home. An attorney can help you sort out all outstanding amounts due and determine the best plan for you. 

Typically, a mortgage cannot be called at the transfer of ownership due to death. However, this protection generally only applies if the mortgage is current. Depending on the bank or mortgage company, a mortgage may or may not be called if you transfer a property into a living trust. You can look through your loan documents with your attorney to ensure that you have a plan in place should you die before the mortgage is fully paid off.

Contact the Trust Brothers To Learn More About How To Best Protect Your Home

We hope this guide has been helpful for you in thinking about your real property plan. If you are not sure about how you hold title to your property or if you are ready to create an estate plan that smoothly and efficiently transfers your property to your loved ones, feel free to give us a call at 626-331-1515.