Planning · July 08, 2020

Titling Your Assets

A key component of any asset protection and estate planning strategy is the proper titling of assets. Titling of assets is a frequently overlooked step in a comprehensive wealth plan.

A solid understanding of titles and the different ways to own property is critical to insuring that your property is both protected and transferred in the manner intended.


Keys Aspects of Titling of Assets

  • Your assets should be titled in a manner consistent with your overall wealth objectives, with particular reference to your asset protection needs and wealth transfer goals
  • Depending on your situation, there may be tradeoffs between protecting your assets during your lifetime and transferring them in the most direct, tax-efficient manner at death
  • Titles are a matter of state law
  • Titling advice is, by definition, legal advice and you should consult with an attorney who is licensed in your state and is well-versed on the subjects of asset protection and estate planning
  • Open communication between your attorney, CPA and trusted wealth manager to assure alignment on goals and prevent gaps between plan and execution

Types of Property Titles

Separate Property

Separate property consists of property that is owned by only one person. Generally this type of property includes property that was acquired prior to a marriage, by gift, by will or inheritance or as rents or profits associated with an individually owned asset.

Community Property

Community property consists of property that is acquired, earned or accumulated during marriage. The property can be acquired through the efforts of either spouse. Each spouse has control over half of their shared community property at death, and that property will be distributed according to their estate plan or state law. The surviving spouse maintains control over the other half of the assets, regardless of distribution of the estate. Community property currently exists in nine states (Alaska provides spouses the option to elect community property treatment.) Right of survivorship is not automatic with community property, but can be specified when setting up ownership.

Joint Tenancy

Joint tenancy consists of equal ownership interest by two or more persons. Joint tenancy is also referred to as joint tenants with right of survivorship meaning that the property transfers automatically (by title) at the death of one owner to the survivor. A person’s estate plan doesn’t apply to assets titled in joint tenancy.

Tenancy by the Entirety

Tenancy by the Entirety consists of joint ownership of an asset between two spouses. This type of property only exists between individuals who are legally married. This ownership type carries with it a right of survivorship and cannot be terminated without the consent of both spouses. It’s important to note that half of states and the District of Columbia recognize this form of ownership.

Tenancy in Common

Tenancy in Common is ownership of an asset by two or more people who hold undivided interests. With this type of ownership there’s no right of survivorship and interests may or may not be equal. Because there’s no right of survivorship interests pass under the terms of the owner’s will (or trust). This may result in a split ownership with a new owner.

Life Estate

A life estate is not what people think of as traditional ownership of property (meaning the holder of a life estate can’t sell the property or gift it away). Rather it’s the use of ownership in real property only for a beneficiary’s life.

Tenancy in Partnership

Tenancy in Partnership requires the creation of a separate partnership entity, created by an attorney and operating under force of law. This separate legal entity (partnership) holds title to the property. Specific interests in the property can’t be conveyed by one partner alone, but rather must be conveyed by the partnership.

Trustee

The trustee of a living or testamentary trust holds legal title to property for the beneficiaries specified in the trust. Beneficiaries have equitable title or the ability to enjoy the use of the asset.

Custodian for a Minor

Under the Uniform Gifts to Minors Act (UGMA) or Uniform Transfers to Minors Act (UTMA), an adult person can hold title to property for the benefit of a minor. The title holder’s last will (or trust) has no effect upon assets titled as such because the assets are technically owned by the minor. Under either act, the assets transfer automatically to the minor once the age of majority (18 or 21 based on state law) is attained.

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