Legal Question in Real Estate Law in California

Re: Title Ownership Wording

There are ways to accomplish your goals, but not the way that you have outlined. Unlike a car or a bank account, title to real property in California is not held using the word "or" to give either party full control over the property. Both owners would need to consent to the transfer.

A durable power of attorney might be of some benefit to carry out certain financial transactions, but the better course of action would be use this as part of an overall estate plan that includes wills and a living trust.

With a properly drafted trust, you hold title as trustees. The trust can provide for the resignation or replacement of a trustee due to mental incapacity. It helps avoid the need for a conservatorship. Feel free to call me at my office or visit my webiste if you need additional information.

Re: Title Ownership Wording

The conventional ways of holding title don't work the way you're hoping they do. These include:

1. Community property;

2. Community property with right of survivorship;

3. Joint tenancy; and

4. Tenancy in common.

In any of the above four common ways for two people to share ownership, the signatures of both would be required to convey the entire title.

There are at least two other ways that what you want to accomplish could be done:

1. Durable power of attorney; and

2. Setting up a corporation, partnership or trust to hold title. The documentation setting up any such entity would have to be carefully drafted to give both spouses full authority to deal with the entity's real property.

Another method that's been used in the past, but which has too many pitfalls to be safe for most couples, is to execute quitclaim deeds to each other and place them in the hands of a trusted third party, with instructions to deliver and record one of them upon the grantor's inacapacity. Again, this is not recommended.

My recommendation is to see an attorney who does a significant amount of estate-planning work, which I don't, to have both a plan and the implementing documents prepared professionally. Among other things, there are property tax, income tax and estate or gift tax issues that may make one method or the other more desirable. The cost of making a planning mistake is high in relation to the cost of advice.

Re: Title Ownership Wording

No. You can't own title that way. I would advise a living trust, durable power of attorney, pour over will and an advance health care directive to take care of your concerns. Depending on the size of your estate you may want more estate planning as well. But what I suggest is a vanilla estate plan that every property owner should have. It is not that expensive to set up or maintain.

You can not own real estate the way you describe.

Re: Title Ownership Wording

OK. Let's be serious here. If you want this to be done properly, then you and your wife need to create a family trust and mirror pour over wills.

First, it will solve the property transfer question, it will save on taxes on the first, but more importantly, the second death. This is when title would pass to your children and when (without a trust) the government will step in and take a nice share through a process called Probate.

My personal (meaning "non-attorney") opinion is that you take a second to read through the website I built for our firm at www.No-Probate.com and learn a little about Probate, Wills and Trusts. There is information on the tax benefits and potential consequences of not properly planning. (Now with the new HIPAA regulations, there is even MORE of a need.)

Once finished...if you are in the greater Los Angeles or surrounding areas and if you would like a free consultation, then please do not hesitate to contact me at 626-578-0708, extension 4 or through our firm's website at www.No-Probate.com under the "attorney" section.

Scott H. Linden