No one wants to think about death, but making sure your affairs are in order is part of any estate plan. If you own a house jointly, titling it as joint tenants with right of survivorship means that if either one of you dies, the survivor owns the entire home. You can also put the house in a living trust, in which case the trust becomes the actual owner.
With either a joint tenancy or living trust, also known as an inter vivos trust, the real estate is excluded from the probate process of the late owner's estate. That process can be time-consuming even if the deceased left a will, but if the deceased died intestate -- or without a will -- things get even more complicated. If a person dies without a will, any of his assets are subject to the laws of intestate succession of the state of which he was a resident. These laws are based on marital and family ties.
Joint Tenants with Right of Survivorship
When you own the house jointly, upon the death of the first owner the survivor owns 100 percent of the property, and any other heirs of the deceased cannot claim it. You can also title bank accounts and other assets in this way. Creating a joint tenancy with right of survivorship is easy and is generally the most common way of titling any house owned by a husband and wife if they purchased together. The deed must state that the owners are joint tenants and not merely tenants in common. There is usually no cost to titling property in this manner.
You and your spouse can create a joint revocable living trust to avoid having any assets placed in the trust, including your house, go through probate. You can either have an attorney draw up the trust or -- in most states -- purchase a living trust kit. Trusts are legal entities, which hold title to any assets placed in them for beneficiaries. If you set up a trust, you are considered the grantor or settlor. The person or other entity, such as a bank, that controls the trust and manages its assets is the trustee. With joint revocable living trusts, you and your spouse can be grantors, trustees and beneficiaries. During your lifetimes, you can amend or revoke the trust. This trust also outlines your estate plans after your deaths and who receives your assets.
If you hold the house in a joint tenancy, it still belongs to you and your spouse or partner. If you put it into a living trust, it technically belongs to the trust, even if the two of you have authority over any decisions made for it. Before deciding whether to go with the joint tenancy or the trust, consider whether you have other assets you want to put in the trust or want to do additional estate planning. The cost of creating the trust may affect your decision.
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