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Consider several factors when deciding how to hold title

March 30, 2009

Q: My husband and I purchased several homes during our marriage. When asked about our preferences for how to hold title we have always answered somewhat automatically, "joint tenancy with right of survivorship." Now that I have read this column for several years and because we are about to purchase a new home, it occurs to me that there may be more to this. What should we be considering about how to hold title?

A: You are very wise. As with many real estate issues, there are several factors to consider. Let's start with what "joint tenancy with right of survivorship" means. Simply, when two or more owners hold title this way and one of them dies, ownership passes automatically to the survivor(s). If there are three owners, for example, each would have one-third ownership but if one died each would have half.

Florida also allows a variation of this form, called tenancy by the entireties for married couples. The only difference between this and simple joint tenancy is that neither the husband nor the wife can convey their share without the consent of the other. Also, there is a different result when considering whether or not a judgement lien attaches.

Property held in joint tenancy is not subject to a will. For example, if a spouse in a second marriage wants the property to be left to a child from the first marriage, even mentioning this in his or her will would not make it happen. This could be remedied by holding the property as tenants in common, a type of joint tenancy of property without right of survivorship where each tenant's portion of ownership is distributable under their will.

You may be surprised to hear that joint tenants who were married to each other but did not hold their property as tenants by the entireties have secretly conveyed title in just this way. One spouse, for example, could sign a quitclaim deed from themselves as a joint tenant to make themselves a tenant in common and convey that share of the property to someone besides the spouse in a will.

A positive aspect of joint tenancy is that probate is avoided when one of the owners dies. All that is usually required is the filing of a death certificate and affidavit of survivorship with the county.

This does not mean that spouses do not need wills if they hold property as joint tenants with right of survivorship or as tenants by the entirety. Spouses involved in accidents sometimes die together. A will would be the only way that their wishes for the property might be realized. As with most real estate questions, you may want to seek the advice of a real estate attorney before making a final decision about how to hold title.

Attorney Sylvia Heldreth is a Certified Specialist in Real Estate Law. Her office is located at 1215 Miramar Street in Cape Coral.

This article is not intended as specific legal advice to anyone and is based upon facts that change from time to time. Individuals should seek legal counsel before acting upon any matter involving the law.



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