Two Names on Deed One Person Dies

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“The ownership structure of your property might be necessary to you if you own it with another person. This will help you understand if the other person passes away. Depending on the structure, the property may not pass to you, the surviving owner. It could pass to another individual in the estate of the second owner.”

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Two Names on Deed One Person Dies

Three ownership structures are available in the United States based on location: tenants in common, joint tenants/joint tenants with survivorship, and tenancy by the entirety.

There are three ownership structures for deeds with two names. They are tenants in common, joint tenants with survivorship and tenancy by the entirety. Each structure has a unique set of implications. It is essential to understand each term, whether you are already a homeowner or a prospective homeowner. Here are some tips on choosing an ownership structure when two names on deed one person dies.

 

Identifying Real Estate Ownership Structures

If you have a joint property or are considering buying one, first, you should learn about the three types of ownership structures. No matter which state or county joint owners live in, their ownership structure follows one of these main legal concepts. Tenants by the entirety, joint tenants with survivorship rights, and tenants in common are examples of joint tenants and tenants with survivorship rights.

 

Survivorship rights for joint tenants

In a joint tenant with rights of survivorship, or JTWROS, tenants have an equal right to the asset, often referred to as a joint tenant. Upon the death of one of the tenants, the asset becomes the property’s surviving party.

The surviving party can use it however they see fit. They can live in it, sell it, rent it out, or refinance to obtain equity. You can avoid the time-consuming and costly probate court process if your ownership structure does not involve probate.

That information will be on the deed if the property is in joint tenants or JTWROS. For example, let’s say Camilo Gaviera and Wang Wen Luan has a common tenant arrangement on their property. In this case, Wang Wen Luan owns 70%, and Camilo Gaviera owns 30%.

As an example, the deed might read as follows:

  • CAMILO GAVIERA and WENG WEN LUA, joint tenants

As an alternative

  • The JTWROS of Camilo Gaviera and Wang Wen Luan

 

Ownership structure for joint tenants

  • Result: Camilo Gaviera is the new owner of the property
  • Probate court is not necessary: None
  • Taxation implications:

Camilo Gaviera will receive the asset if Wang Wen Luan dies. The right of survivorship implies that, upon Ms. Wang’s death, Mr. Gaviera receives the entire property in full, even if Mr. Gaviera only owns 30% of the property and Wang Wen Luan owns 70%.

 

Tenants by the entirety

As with a joint bank account, tenancy by the entirety refers to ownership structures reserved for married couples where most of the property falls under “community property.” It differs from joint tenant ownership, in which different owners can own a property with varying amounts of equity. Ownership by the entirety involves 100% ownership for all owners rather than the standard 50/50 split.

The right to survivorship comes with tenancy by the entirety. In addition to equal rights for each spouse, the surviving spouse is guaranteed free of charge after the deceased spouse’s death. Mr. Gaviera and Ms. Wang are tenants by the entirety in this example because they are married.

 

Ownership structure based on tenancy by the entirety

  • Result: Camilo Gaviera is the new owner of the property
  • Probate court not needed: None
  • No tax implications

It is up to Mr. Gaviera to decide what to do with the property following the death of Ms. Wang.

 

Common tenants

In a tenancy in common, the property or asset does not pass directly to the other person on the deed, so it is trickier than the first two options. In the event of a buyout of Mr. Gaviera’s share of the property or a sale of the property, Ms. Wang receives her equity share as a result of the surviving person, Ms. Wang. An estate that was likely detailed in a will will inherit the deceased owner’s interest in the property directly.

 

Executor or trustee to split up the assets.

When this happens, it will likely take place by a probate court appointing an executor or trustee to split up the assets. The surviving party will need to decide what to do with the property, if there is any. The surviving party can usually buy out of the estate or put the property up for sale after the probate court has assessed the value.

We will use the same example as the first one of Camilo Gaviera and Wang Wen Luan, where they split the property 70/30, but in this case, there will be a “tenants in common” ownership structure. The estate of Ms. Wang and Mr. Gaviera agree to sell the property in this instance.

  • The purchase price for Ms. Wang and Mr. Gaviera is $100,000
  • $300,000 is the current value
  • The estate equity portion of Ms. Wang’s estate is $210,000 (70%)
  • Equity portion of Mr. Gaviera: $90,000 (30%)

 

Standard ownership structure for tenants

  • The property passes to Ms. Wang’s estate and Mr. Gaviera for his share
  • Probate court is necessary: Yes
  • Tax implications: Mr. Gaviera’s capital gains will be taxed, and Mrs. Wang’s estate may be subject to inheritance tax.

In some form, Mr. Gaviera will be liable for capital gains since he purchased the property for only $30k for a 30% stake, and now the equity is worth $60k. Ms. Wang’s estate will be combined with the estate’s entire value and given to her heirs, resulting in inheritance tax liability.

 

A Change Of Deed Requires Paperwork.

It benefits the survivor from the point of view that, legally, the entire property transfers at the time of death under a joint tenant or tenant-by-the-entirety structure. The surviving party, however, will most likely wish to modify the official record and deed to reflect the changes.

 

A Change Of Deed Requires Paperwork.

 

This can also apply if the second party buys out the other portion and keeps the property. In this case, they must:

  1. Locate the county recorder, deed registry, or similar local office
  2. Please bring a signed sworn statement from the survivor
  3. Please provide a copy of the death certificate certified by a notary public.

The sworn statement can be referred to as “Affidavit-Death of Joint Tenant,” “Affidavit: Death of Spouse,” “Change Title,” or several other names, depending on where you live. Sometimes, your state or county may require additional documents, so you may want to ask about them.

 

What Happens When Two Names Are On A Deed, And One Person Dies?

Regarding a joint property purchase, two names are on the deed. If one of these individuals dies, who owns the property?

 

Verify the deed.

One of the first things a lawyer would examine when two names are on a deed is the deed language. California offers three types of joint ownership: joint tenancy with survivorship, joint tenancy in common, and joint tenancy by the entirety. Co-owners are presumed to own the property under tenancy in common if the deed is silent about the type of ownership.

There is a difference between “tenant” in a lease agreement and “tenant” in a co-ownership agreement since tenants are tenants – renters without ownership rights – and tenants in a co-ownership are co-owners with ownership rights.

 

When one owner dies

When Two Names on Deed One Person Dies, his interest does not transfer to the other surviving co-owner. Joint tenancy with survivorship transfers the entire interest in the real property to the remaining survivor if one person dies in the deed. The same survivorship rule governs a tenancy by the entirety. However, tenancy, in its entirety, is only applicable to spouses who purchase real estate together.

A lawyer will check the language of a deed to determine who will own the property if two names appear on the deed and one person dies. We may be lucky enough that the deed already specifies the type of ownership among the owners. A and B will, for example, be joint tenants, or they will be tenants-in-common, or they will be joint tenants with survivorship rights. A joint tenant with legal rights to survive is the same as an uninvolved joint tenant with no right to survivorship in California.

 

Is There A Problem If The Deed Does Not State The Type Of Ownership?

When two names appear on the deed, we presume the property is owned as tenants-in-common unless the co-owners are spouses. If one person dies and there is no description of how they lost it. If co-owners are spouses, the presumption is that ownership is tenancy by the entirety. Contrary evidence can, however, refute this presumption.

 

Some Examples:

When Two Names on Deed One Person Dies? If spouses A and B purchase real property together and the deed does not state otherwise, the partners own the property as tenancy by the entirety. If A passes away, B will inherit the entire property.

Real estate investors A and B, friends and real estate partners, purchase real property together as an investment. There is no indication of the ownership type on the deed.

In this case, the presumption is standard, with each party owning 50%. The 50% interest in the real property will go to the estate of A upon his death, which will distribute it to his heirs and beneficiaries. A deed without joint tenancy and survivorship prevents B from claiming ownership of the entire property.

Parents and children A and B, purchase real property together. A dies. B submits an affidavit and a copy of the deceased parent’s death certificate to the land registry of deeds, transferring the property to B. A’s siblings claim A’s interest in the property belongs to the estate, which is not the case.

No, A and B own the property jointly with rights of survivorship. The property automatically transfers to B when A dies, not to the estate, because B is the survivor. B’s siblings may set aside the deed with B as grantor and A and B as joint tenants with rights of survivorship. They may do this if they demonstrate that A, the parent, transferred the property to B, the child, under undue influence.

 

Before the marriage, and after the marriage

Before the marriage, an owned real property. After the marriage, A gave B, his wife, 12 or 50% of the property. B was married to another woman who had children. According to A, they held the property as tenants by the entirety when B passed away.

According to B’s children from a previous marriage, 50 percent of the real property belongs to B’s estate. Are B’s children correct in their claim? Even if A and B are spouses, they do not own the real property as tenants because they did not acquire it together. The ownership would be tenancy if A transferred it to A and B. The deed, however, only shares 50% to B.

Therefore, tenants in common presumptively own the property, and B’s interest goes to her estate.

 

FAQ:Two Names on Deed One Person Dies 

 

In what types of ownership does survivorship apply?

Both joint tenants and tenants with rights of survivorship and tenancy by the entirety have the right of survivorship.

 

Joint tenants have rights of survivorship, but what are their disadvantages?

In a JTWROS structure, owners cannot sell their stakes without their partners’ consent during a volatile relationship, and heirs of a recently deceased partner do not benefit.

 

After one of the joint tenants dies, what happens to their interest in the property?

Joint owners in joint tenants or JTWROS arrangement will automatically transfer their interests in a property to the other party without needing a probate court proceeding.

 

What happens if the right of survivorship overrides a will?

A right of survivorship can indeed override a will. Only in a structure of tenants-in-common without the right of survivorship will the property transfer to the estate at the death of the joint tenant.

 

Is there any difference between joint tenants with the right of survivorship and joint tenants without the right of survivorship?

The terms “joint tenants” and “joint tenants with survivorship” have the same meaning. Local nomenclatures may differ from each other depending on where you live.

 

Key Takeaways

  • If Two Names on Deed One Person Dies, the ownership structure will determine how to transfer the asset when the owner dies.
  • If one co-owner dies, the property automatically passes to the surviving co-owner in joint tenants or JTWROS structure.
  • Unlike tenants-in-common ownership, tenants-in-common property ownership passes from the surviving co-owners to the deceased’s estate.
  • As the tenant-in-common, you are only responsible for the debts of a deceased co-owner if the property has passed to you from them.

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