Legal Question in Real Estate Law in California

Re: Name of children being added to Land/House Title/Deed

Since your deaths would result in transfering full ownership to your first cousin and his wife, ie., joint tenancy gives ownership to survivors. Change ownership status to tenancies in common. Call to discuss questions re your home. 800-685-6950

Re: Name of children being added to Land/House Title/Deed

Joint tenancy means that at the death of one tenant, that interest gets split equally among the remaining tenants. This transfer happens by operation of law and without intervention of the probate court. A will has no effect on property held in joint tenancy. Under your current situation, when you die, your interest will be shared equally by the remaining tenants (i.e. your wife and cousins).

Since you should change title anyway, the best thing to do is to prepare a modest estate plan transferring the land and your home into a trust. A trust will provide you with tax advantages and greater flexibility. Under no circumstances would I suggest adding your children as joint tenants on either property. Feel free to contact us if we can be of assistance.

Re: Name of children being added to Land/House Title/Deed

As to the first question: No, a will (with or without a trust) is not sufficient. The reason is that if you and your wife should die simultaneously (or nearly so), the other joint tenants would become the owners "automatically," by reason of the joint tenancy, which carries with it the right of survivorship, which means the surviving joint tenant(s) become owners without regard to any testamentary instructions.

However, I would not recommend curing this problem by deeding interests to the youngsters. Children under 18 may own property, but cannot sell it without special court procedures, and this would be awkward in the event an emergency or unexpected opportunity made sale desirable.

Instead, you need to convert the joint tenancy into a tenancy in common. This is easily done and you don't need the co-owners' permission or approval, but it would be good to seek it anyway in the interest of family harmony.

The best method depends upon how title is actually held. There are (at least) two possibilities. One is that there are four joint tenants -- each of the four of you owning a 1/4 share as his or her separate property. From the way you descibe it, this would be more likely.

On the other hand, on a state-wide basis is is more likely that each marital community owns 1/2 as joint tenant, but that within each marital community (as between the spouses) the holding is as community property.

If there are truly four 1/4 joint tenancies with separate property character, one possibility is for you and your wife to convey your separate-property interests to your marital community. A real estate lawyer can assist you. Keep in mind that this may be ineffective if there are not four joint tenancies.

If instead your marital community owns a 1/2 interest as a joint tenant, a single deed from the community as joint tenant to "itself" as tenant in common should be effective.

You can use either grant deeds or quitclaims and the transaction should have no property or income tax consequences if the deed reflects the relationship of grantor and grantee. I strongly recommend professional assistance, however.

After the transaction(s), you'll be tenants in common and survivorship concepts will not apply, and you can then devise the property by will or place it in an estate-planning trust.

As to your house (second question), the bank is probably not an "owner," but merely a secured lender (and notwithstanding that it is the beneficiary of a deed of trust). You can transfer your house to your heirs by will or by trust; so long as the payments are made by someone (you, the kids, the insurance) the bank will remain a lender and never become an owner.

This is a good time to get professional estate-planning advice, which could include the 2-1/2 acres.

Re: Name of children being added to Land/House Title/Deed

Neither is a good idea. If you gift your interest to your children while you are alive it will cost them a lot more in capital gains taxes. A will will require the property to go through probate. Call me and I'll give you information about how you can go to a free seminar and learn about all of the best alternative.