HOW SHOULD YOUR CLIENTS TAKE TITLE TO THEIR HOME?

 A GUIDE FOR REAL ESTATE PROFESSIONALS

BY JOHN F. KOENIG, ATTORNEY AND COUNSELOR AT LAW


HOW MANY TIMES HAS ONE OF YOUR CLIENTS ASKED YOU “HOW SHOULD I TAKE TITLE TO MY NEW HOME?”  

It’s a question I get all the time as an estate planning attorney.  You have the opportunity to make sure that your clients have all the benefits of rightly titled property and they will definitely thank you for it.


WHY IS TITLING PROPERTY CORRECTLY SO IMPORTANT TO HOMEOWNERS?

First, if titled incorrectly, the property owner cannot control what happens to the property after he dies; second, if titled incorrectly, the heirs can lose the property to creditors, the government, or even an ex-spouse; third, if titled incorrectly, the heirs will have to pay capital gain on the sale of the property.  


THREE COMMON WAYS TO HOLD TITLE 

JOINT TENANCY

The worst part about joint tenancy is the owner who dies first cannot control what happens to the property after his or her death.  Joint Tenancy ensures that there will be a probate upon the death of the second joint tenant.  Finally, the surviving joint tenant will pay capital gain on one-half of the property after the death of one joint tenant.


COMMUNITY PROPERTY

Possibly the most common way for married couples to own property, Community Property causes half of the property owned as community property to be probated upon the first death, and the whole property must be probated upon the second death.  Probate is not fun- it is time-consuming and costly!  


COMMUNITY PROPERTY WITH RIGHT OF SURVIVORSHIP

Like joint tenancy, CPw/ROS is a he who dies last wins situation, because the surviving owner controls the disposition of the property on her death.


THE FOURTH AND BEST WAY TO OWN PROPERTY – A REVOCABLE LIVING TRUST

The best way for your homeowners to own their property is in a revocable living trust.  

  • A properly drafted and funded trust will avoid time-consuming, expensive, and public probate upon the first death and the second death.  

  • A revocable living trust will make sure that the right people receive the property after the death of both owners and that it doesn’t go to creditors, predators, or future spouses.  

  • Property received by the heirs can be sold free of any capital gain tax and can be protected from creditors and predators of the heirs.


For more information please contact Anchor Law at (262) 254-0068 or info@myanchorlaw.com

© 2025 John F. Koenig, Attorney and Counselor at Law.  May be reproduced in full without prior written consent for distribution purposes.

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