Real estate is frequently the most valuable part of an estate. It is important to know how your property is titled when estate planning to determine how to ensure that the property transfers to your desired beneficiaries. Property is titled in many different ways reflecting various types of ownership. Consequently, property can be titled in such a way as to avoid probate.
Real Estate and Probate
Some common types of ownership are:
- Tenants in Common
- Tenants by the Entireties
- Joint Tenancy With Rights of Survivorship
- Transfer on Death
- Life Estate
Tenants in Common
- Each tenant owns an undivided interest in the property and it is created if there is no survivorship language in the deed.
- Each tenant’s interest goes through probate at their passing.
- Property is subject to the tenants’ individual creditors.
- Each tenant can transfer his interest without the permission of the others.
Tenants By The Entireties
- This type of ownership is for married couples.
- When one spouse dies, the other receives the property outside of probate.
- Neither spouse can sell the property without the other’s consent.
- Individual creditors generally cannot place a lien on the property.
- Property is subject to probate at the death of the second spouse.
Joint Tenancy With Rights of Survivorship
- Here the joint owners don’t have to be married.
- When an owner passes, his share is transferred to the remaining owners without going through probate until the last owner passes.
Transfer on Death
- This is also called a beneficiary deed in Colorado.
- Here the owner remains the sole owner until he passes away and then the property is transferred to the beneficiaries without going through probate.
- The owner maintains control and can remove the beneficiary at any time.
- A life estate is the right to use the property until passing.
- At the owner’s death, the property is transferred to the beneficiaries without going through probate.
- The owner can not change the beneficiary without the consent of the beneficiary.
Deed Transfers To Children
One common method of avoiding probate is to deed property to children. This method has some advantages and disadvantages. You should consider whether the transfer:
- actually will avoid probate
- subjects the property to the children’s debts
- can be changed without the children’s permission
- has any impact on Medicaid benefit eligibility
- has any gift tax impact
At Whitcomb, Selinsky, PC we understand how important property ownership is in your estate plan. If you are looking for an estate planning attorney in Denver, please call for a free case assessment.