Estate planning is the process by which an individual makes decisions concerning the transfer of their assets after their passing as efficiently and tax-friendly as possible. Another important part of estate planning is asset titling. Even though a couple may have the greatest Wills and/or Trusts in the world, these documents may not accomplish their goals if their assets are not titled appropriately. Therefore, it is crucial to understand the various ways that couples can title real estate in their deed and the legal consequences of those different titling alternatives. The ways listed below may also be used by unmarried individuals as well, but the focus in this article is on the use of these ways to title real estate by a couple.
When a couple purchases real estate, it is crucial that they determine how they would like their real estate to be owned. In the state of Ohio, there are generally three ways that this real estate can be owned: as tenants in common, as joint tenants with right of survivorship, and as a sole owner with a transfer on death affidavit. Some states have another type of ownership called tenancy by the entirety. This is a type of joint tenancy is only between husband and wife and it carries the right of survivorship. Since April 4, 1995, tenancy by the entirety ownership deeds are not permitted in Ohio. However, such deeds created before this date are still valid.
Tenancy in Common
The most basic form of title for couples is as tenants in common. In Ohio, if no manner of title is stated, then co-ownership between individuals is presumed to be tenants in common. For example if the deed provides for ownership by "Jim Smith and Mary Smith, husband and wife", this is a tenancy in common. Owners of property as tenants in common own an undivided fractional interest in the property. Therefore, even though the owners may own an unequal share of the property, the owners may still each use the entire property and the physical property is not divided. In tenants in common situations, when one of the owners passes away, that owner’s interest in the real estate is transferred by the owner’s Will to his heirs or legatees.
Joint Tenants With Right of Survivorship
Another form of real estate ownership in Ohio is referred to as joint tenants with right of survivorship. This form of ownership can be obtained by specifically using the words after the co-owners names, “as joint tenants with right of survivorship.” For example, if the deed provides for ownership by "Jim Smith and Mary Smith, husband and wife, for their joint lives remainder to the survivor of them", this real estate is owned as joint tenants with right of survivorship. The difference between tenancy in common and joint tenants with right of survivorship is that upon the death of an owner in a joint tenant with right of survivorship situation, that joint owner’s interest in the real estate automatically disappears and the remaining joint owner becomes the sole owner of the real estate. This type of ownership is used couples in order to avoid probate upon the death of either one of them. Joint tenants with right of survivorship was created beginning in 1978.
Transfer on Death Affidavit
The third way that real estate may be owned is by a couple is by one of the spouses with a transfer on death affidavit recorded as well. This transfer on death affidavit allows an individual to own real estate in his or her own name and then also provide that upon his or her passing, the real estate will pass to the other spouse named in the transfer on death affidavit. Upon the death of the owner, the real estate becomes the property of the spouse named in the affidavit. This is another way for the couple to avoid probate. Many times, couples do not consider the manner in which they own real estate as important; however, it is quite important to consider the titling of their real estate in order to avoid probate if that is one of their goals. Before determining the specific type of ownership in real estate, a couple should determine the most advantageous manner based on their specific situations and then act accordingly.
NOTE: This general summary of the law should not be used to solve individual problems since slight changes in the fact situation may require a material variance in the applicable legal advice.
James F. Contini II, Esq.
Certified Specialist in Estate Planning, Trust & Probate Law by the OSBA
Krugliak, Wilkins, Griffiths & Dougherty Co., LPA
158 North Broadway New Philadelphia, Ohio 44663
Phone: (330) 364-3472 Fax: (330) 602-3187