Property Ownership: Property Titling and Your Estate Plan

By Chris Tymchuck
Founding Attorney

I recently met with a client to retitled a home so that an ex partner would no longer be on the deed.  But, upon conducting a record’s search, we learned that the client had never added the ex to the title.  It was still titled solely in my client’s name. This would have been great news except that my client had paid the ex a significant amount of money to “buy back” the title to the home. Post relationship issues aside this is a good example of how titling of your property is an important issue that must be addressed during the various stages of your life. It can be affected by a new relationship, break up, incapacity or death.

Titling of assets is an especially important issue for nontraditional famlies where the law will never assume that someone unrelated by blood or marriage is entitled to an interest in an asset.  Further, if you are in a second marriage and have kids from a prior relationship, absent clear evidence (i.e. will or trust) of your intent, the Minnesota intestacy statute dictates how your assets wiill be distribued to your current spouse and prior children.

The way you title your assets is a crucial part of your estate plan.  Below we will review the ways in which you may own property.

Coordinating Property Ownership and Your Estate Plan

When planning your estate, you must consider how you hold title to your real and personal property. The title and your designated beneficiaries will control how your real estate, bank accounts, retirement accounts, vehicles and investments are distributed upon your death, regardless of whether there is a will or trust in place and potentially with a result that you never intended.

One of the most important steps in establishing your estate plan is transferring title to your assets. If you have created a living trust, it is absolutely useless if you fail to transfer the title on your accounts, real estate or other property into the trust. Unless the assets are formally transferred into your living trust, they will not be governed by the terms of the trust and the purpose of the trust will fail.  Any property not titled in the name of the trust, and that is not jointly held, will be subject to probate.  If you have a proper will then then that property may still go to your chosen beneficiary through the probate process. But, if you do not have a will, or the will is outdated, that asset may not go to the person you would have chosen if someone had asked.  Well – I am asking now.  Who should get your stuff?

Even if you don’t have a living trust, how you hold title to your property can still help your heirs avoid probate altogether. This ensures that your assets can be quickly transferred to the beneficiaries, and saves them the time and expense of a probate proceeding. Listed below are two of the most common ways to hold title to property; each has its advantages and drawbacks, depending on your personal situation.

Tenants in Common: When two or more individuals each own an undivided share of the property, it is known as a tenancy in common. Each co-tenant can transfer or sell his or her interest in the property without the consent of the co-tenants. In a tenancy in common, a deceased owner’s interest in the property continues after death and is distributed to the decedent’s heirs. Property titled in this manner is subject to probate, unless it is held in a living trust, but it enables you to leave your interest in the property to your own heirs rather than the property’s co-owners. The drawback is that the co-tenant may now share ownership of the property with someone they don’t know, or worse, don’t like. This can lead to a host of issues that will be discussed in a later post specifically addressing the issues of  all types joint ownership of property.

Joint Tenants:  In joint t

About the Author
As a Minneapolis Estate Planning and Probate attorney I help build and protect families through the adoption, estate planning, and probate processes. I also have experience working with families on issues related to their small businesses. I know how difficult it is to find time to plan for the future and I am here to help walk you through it.