Page 18 - CTT English Buyer Seller Guide
P. 18

Community Property
Parties
Division
Possession
Conveyance
Purchaser's Status
Title
Death
Successor's Status
Creditor's Rights
Presumption
Only Married Spouses
Ownership and managerial interests are equal
Title is in the “community.” Each interest is separate but management is unified
Both co-owners have equal management and control
Requires written consent of other spouse-or actual conveyance by deed. Separate interest is divisible by will
Purchaser can only acquire whole title of community; cannot acquire a part of it
A 1⁄2 interest is owned by law by the surviving spouse. The decedent first spouse may only devise their 1⁄2 interest
If passing by will, tenancy in common between devisee and surviving spouse results
Property of community is liable for debts of either spouse which are made before or after marriage. Whole property may be sold on execution sale to satisfy creditor
Strong presumption that property acquired by Married Spouses is community
Joint Tenancy
Any number of persons (can be Married Spouses)
Ownership interest must be equal
Sale or encumbrance by joint tenancy serves joint tenancy
Equal right of possession
Title is held jointly. Conveyance by one co-owner without the others breaks the joint tenancy
Purchaser will become a tenant in common with other co-owners in the property as to the purchaser’s interest. Other owners may remain joint tenants
On co-owner’s death his/her interest ends and cannot be disposed of by will. Survivor owns the property by survivorship
Last survivor owns property
Co-owner’s interest may be sold on execution sale to satisfy creditor. Joint tenancy is broken, creditor becomes a tenant in common
Must be expressly stated
Tenancy
In Common
Any number of persons (can be Married Spouses)
Ownership can be divided into any number of interests equal or unequal
Each co-owner has a separate legal title to his/her undivided interest
Equal right of possession
Each co-owner’s interest may be conveyed separately by its owner
All the co-owners may agree to make the purchaser a joint tenant with them. Otherwise, the parties become tenants in common
On co-owner’s death his/her interest passess by will to devisee or heirs. No survivorship right
Devisee or heirs become tenants in common
Co-owner’s interest may be sold on execution sale to satisfy his/her creditor. Creditor becomes a tenant in common
Favored in doubtful cases except Married Spouse cases
Title
Holding Trust
Individuals, groups of persons, partnership or corporations, a living trust
The beneficial interest in the trust is a personal property interest. The trustors who create the trust may divide the beneficial interest into any number of interests.
Legal and equitable title is held by the trustee
Right of possession as specified in the trust provisions
Designated parties with the trust agreement authorize the trustee to convey property. Also a beneficia- ry’s interest in the trust may be transferred. *If allowed by the Trust Agreement
A purchaser may obtain a beneficial interest by assignment or may obtain legal and equitable title from the trust
Successor beneficiaries may be named in the trust agreement, eliminating the need for probate
Defined by the trust agreement, generally the successor becomes the beneficiary and the trust continues
Creditor may seek an order for the execution sale of the beneficial interest or, if the trust doesn’t have a spendthrift clause, may seek an order that the trust estate be liquidated
A trust is expressly created by an executed trust agreement
Community Property Right of Survivorship
Only Married Spouses
Ownership and managerial interests are equal
Title is in the “community,” management is unified
Both co-owners have equal management and control
Right of survivorship may be terminated pursuant to the same procedures by which a joint tenancy may be severed
A purchaser can only acquire an interest in property as a tenant in common with a husband and wife (can be Married Spouses) holding their interest as community property
Upon the death of a spouse, his/her interest passes to the surviving spouse, without administration, subject to the same procedures as property held in joint tenancy
Surviving spouse owns property
Property of community is liable for debts of either which are made before or after marriage; whole property may be sold on execution sale to satisfy creditor
Must be expressly stated
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