When we buy property or other assets we generally give little or no thought to the legal ownership of that asset. Often we are swept away “in the moment” and don’t consider the various options or legal implications that may arise in the future. No thinks to ask the question, have I purchased in the correct legal structure? Is there a better way?
When we buy property we don’t give much thought about what happens upon death. Traditionally this may not be a big issue with a husband and wife but what about blended families, second (or third) marriages or even investments with friends or business associates. In these situations the structure of the legal ownership is very important from an estate planning perspective as can be seen below.
Where an asset is owned individually it transfers to the nominated beneficiary according to the Will. Where there is no Will, the assets are subject to the Laws of intestacy as they apply for that relevant Sate. Depending on the nature and value of the asset Probate may be required first before the ownership can be transferred.
TWO OR MORE OWNERS
When two or more people own an asset, such as a family home or investment property, it may be either as a joint tenant, tenant in common, or a combination of both. Although similar in some respects, the main difference between these forms of ownership is what happens to the property when one of the owners passes away.
What is “joint tenancy”
This arises when two or more Joint tenants hold an undivided equal share of property. When a property is owned by the joint tenants, the interest of a deceased owner will automatically be transferred to the remaining owners. For an example, if three joint tenants own a property and one of them passes away, then the remaining two “survivors” will own one-half share of the property from the date of death.
What is “tenants in common”
With tenants in common each proprietor can own equal or unequal shares in a property. For couples this would most likely by 50%. Unlike joint tenants, tenants in common don’t have any rights of survivorship. In this case the deceased’s interest in the property will be transferred according to the Will and probate must generally first be obtained in order to transfer the property interest.
If you are unsure about the specific ownership type you should look at a copy of the title deed.
Steve Wildes, Partner, Paris Financial
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