Best Ways to Hold Title to Real Estate and Other Property

Ways to Hold Title to Real Estate and Other Property

Ways to Hold Title

There are many ways to hold title to real estate. The manner in which one titles property can have a dramatic effect on how the courts may divide property in the event of divorce. Plus, it can dramatically affect a creditor’s ability to seize your home or other real estate.  For example, the best way to hold title for a married couple is often tenancy by the entireties. But, as you will see from our research below, not all states offer this form of ownership. Please see the title vesting chart below as well as definitions for various ownership types as you scroll further.

Title Vesting Chart

Here are different ways one can hold title to property by state. Please see the detailed description of the different ways to hold title below. Knowing your options and the ways they secure your property are important elements of real estate asset protection.

StateTypes of Ownership / Ways to Hold Title
AlabamaSole Ownership, Joint Tenancy with Right of Survivorship, Tenancy in Common, Trust, Corporation/LLC (and similar legal entities).*
AlaskaSole Ownership, Tenancy in Common, Tenancy by the Entirety, Trust, Corporation/LLC*
ArizonaSole Ownership, Joint Tenancy with Right of Survivorship, Tenancy in Common, Community Property Without Right of Survivorship, Trust, Corporation/LLC, Corporation/LLC*
ArkansasSole Ownership, Joint Tenancy with Right of Survivorship, Tenancy in Common, Tenancy By the Entirety, Trust, Corporation/LLC
CaliforniaSole Ownership, Joint Tenancy with Right of Survivorship, Tenancy in Common, Community Property With Right of Survivorship, Trust, Corporation/LLC*
ColoradoSole Ownership, Tenancy in Common, Joint Tenancy with Right of Survivorship, Trust, Corporation/LLC*
ConnecticutSole Ownership, Tenancy in Common, Joint Tenancy with Right of Survivorship, Trust, Corporation/LLC*
DelawareSole Ownership, Tenancy in Common, Joint Tenancy with Right of Survivorship, Tenancy by the Entirety, Trust, Corporation/LLC*
District of ColumbiaSole Ownership, Tenancy in Common, Tenancy by the Entirety, Trust, Corporation/LLC*
FloridaSole Ownership, Tenancy in Common, Joint Tenancy with Right of Survivorship, Tenancy by the Entirety, Trust, Corporation/LLC*
GeorgiaSole Ownership, Tenancy in Common, Joint Tenancy with Right of Survivorship, Trust, Corporation/LLC*
HawaiiSole Ownership, Tenancy in Common, Joint Tenancy with Right of Survivorship, Tenancy by the Entirety, Trust, Corporation/LLC*
IdahoSole Ownership, Joint Tenancy with Right of Survivorship, Tenancy in Common, Community Property With Right of Survivorship, Trust, Corporation/LLC*
IllinoisSole Ownership, Tenancy in Common, Joint Tenancy with Right of Survivorship, Tenancy by the Entirety (Homestead Only) , Trust, Corporation/LLC*
IndianaSole Ownership, Tenancy in Common, Joint Tenancy with Right of Survivorship, Tenancy by the Entirety, Trust, Corporation/LLC*
IowaSole Ownership, Tenancy in Common, Joint Tenancy with Right of Survivorship, Trust, Corporation/LLC*
KansasSole Ownership, Tenancy in Common, Joint Tenancy with Right of Survivorship, Trust, Corporation/LLC*
KentuckySole Ownership, Tenancy in Common, Joint Tenancy with Right of Survivorship, Tenancy by the Entirety, Trust, Corporation/LLC*
LouisianaSole Ownership, Tenancy in Common, Community Property With Right of Survivorship, Community Property, Trust, Corporation/LLC*
MaineSole Ownership, Joint Tenancy with Right of Survivorship, Tenancy in Common, Trust, Corporation/LLC*
MarylandSole Ownership, Tenants in Common, Joint Tenancy with Right of Survivorship, Tenancy by the Entirety, Trust, Corporation/LLC*
MassachusettsSole Ownership, Tenants in Common, Joint Tenancy with Right of Survivorship, Tenancy by the Entirety, Trust
MichiganSole Ownership, Tenancy in Common, Joint Tenancy with Right of Survivorship, Tenancy by the Entirety, Trust, Corporation/LLC*
MinnesotaSole Ownership, Tenancy in Common, Joint Tenancy with Right of Survivorship, Trust, Corporation/LLC*
MississippiSole Ownership, Tenancy in Common, Joint Tenancy with Right of Survivorship, Tenancy by the Entirety, Trust, Corporation/LLC*
MissouriSole Ownership, Tenancy in Common, Joint Tenancy with Right of Survivorship, Tenancy by the Entirety, Trust, Corporation/LLC*
MontanaSole Ownership, Joint Tenancy with Right of Survivorship, Tenancy in Common, Community Property With Right of Survivorship, Trust, Corporation/LLC*
NebraskaSole Ownership, Joint Tenancy with Right of Survivorship, Tenancy in Common, Community Property With Right of Survivorship, Trust, Corporation/LLC*
NevadaSole Ownership, Joint Tenancy with Right of Survivorship, Tenancy in Common, Community Property With Right of Survivorship, Trust, Corporation/LLC*
New HampshireSole Ownership, Tenancy in Common, Joint Tenancy with Right of Survivorship, Trust, Corporation/LLC*
New JerseySole Ownership, Tenancy in Common, Joint Tenancy with Right of Survivorship, Tenancy by the Entirety, Trust, Corporation/LLC*
New MexicoSole Ownership, Tenancy in Common, Joint Tenancy with Right of Survivorship, Community Property, Trust, Corporation/LLC*
New YorkSole Ownership, Tenancy in Common, Joint Tenancy with Right of Survivorship, Tenancy by the Entirety, Corporation/LLC*
North CarolinaSole Ownership, Tenancy in Common, Joint Tenancy with Right of Survivorship, Tenancy by the Entirety, Corporation/LLC*
North DakotaSole Ownership, Tenancy in Common, Joint Tenancy with Right of Survivorship, Corporation/LLC*
OhioSole Ownership, Tenancy in Common, Joint Tenancy with Right of Survivorship, Corporation/LLC*
OklahomaSole Ownership, Tenancy in Common, Joint Tenancy with Right of Survivorship, Tenancy by the Entirety, Corporation/LLC*
OregonSole Ownership, Tenancy in Common, Joint Tenancy with Right of Survivorship, Tenancy by the Entirety, Corporation/LLC*
PennsylvaniaSole Ownership, Tenancy in Common, Joint Tenancy with Right of Survivorship, Tenancy by the Entirety, Corporation/LLC*
Rhode IslandSole Ownership, Tenancy in Common, Joint Tenancy with Right of Survivorship, Tenancy by the Entirety, Corporation/LLC*
South CarolinaSole Ownership, Tenancy in Common, Joint Tenancy with Right of Survivorship, Corporation/LLC*
South DakotaSole Ownership, Tenancy in Common, Joint Tenancy with Right of Survivorship, Corporation/LLC*
TennesseeSole Ownership, Tenancy in Common, Joint Tenancy with Right of Survivorship, Tenancy by the Entirety, Corporation/LLC*
TexasSole Ownership, Tenancy in Common, Joint Tenancy with Right of Survivorship, Community Property with Right of Survivorship, Corporation/LLC*
UtahSole Ownership, Tenancy in Common, Joint Tenancy with Right of Survivorship, Corporation/LLC*
VermontSole Ownership, Tenancy in Common, Joint Tenancy with Right of Survivorship, Tenancy by the Entirety, Corporation/LLC*
VirginiaSole Ownership, Tenancy in Common, Joint Tenancy with Right of Survivorship, Tenancy by the Entirety, Corporation/LLC*
WashingtonSole Ownership, Tenancy in Common, Joint Tenancy with Right of Survivorship, Community Property, Corporation/LLC*
West VirginiaSole Ownership, Tenancy in Common, Joint Tenancy with Right of Survivorship, Corporation/LLC*
WisconsinSole Ownership, Tenancy in Common, Joint Tenancy with Right of Survivorship, Community Property with Right of Survivorship, Corporation/LLC*
WyomingSole Ownership, Tenancy in Common, Joint Tenancy with Right of Survivorship, Tenancy by the Entirety, Corporation/LLC*

*Corporation/LLC includes the other entity types available state by state such as the LP, Series LLC, LLP, LLLP, nonprofit organization, Municipality, etc.

Sole Proprietorship vs. LLC

Sole Ownership

Sole ownership occurs when one individual holds title to a property. Sole ownership is used to describe titles which are held freely and clearly by a single individual. That individual maintains the sole right to transfer or encumber the title to that property.

Protecting Your Home

Tenancy in Common

Tenancy in common allows multiple individuals to hold the title of an entire property. The title may be transferred or subject to encumbrance by each of the tenants. There is no right of survivorship, however, for the remaining tenants if one of the tenants passes away. Unless a state’s law specifically states otherwise, tenants in common share equal interest in the property.

Lawyer with couple

Joint Ownership with Right of Survivorship

Multiple individuals can hold a single title under joint ownership with right of survivorship. Under this form of ownership, each individual owns an undivided interest in the entire property. If one of the owners passes away, the remaining owners absorb that person’s interest. All owners have equal interest in the property. Any owner may freely transfer their interest but doing so nullifies the right of survivorship provided in the deed.

Tenancy by the Entirety States

Tenancy by the Entirety

Only a legally married couple may hold a property title under tenancy by the entirety. Moreover, this form of property ownership is only available in certain states. Under tenancy by the entirety, neither spouse has the ability to transfer their interest or encumber the title of the property without the consent of the other spouse. If one of the spouses passes away, the surviving spouse immediately acquires sole ownership of the property. This form of ownership is only legal in certain states.

Here is why tenancy by the entirety is often the best way to hold title for a married couple. From an asset protection standpoint, tenancy by the entirety provides some tremendous benefits. First, tenancy by the entirety creates the semblance of a “third person.” For example, the husband has a creditor judgment recorded against himself from one party. The spouse has a judgment from another party. The property entitled under tenancy by the can remain shielded from either creditor. It is only when the same creditor has a judgment against both spouses that such property is vulnerable.

It is not a wise asset protection strategy to depend on tenancy by the entirety to shield wealth. This is because death and divorce is a Did you mean:
death knell to this type of ownership. Everyone dies, including your spouse. When they do, boom, your protection is instantly gone. Not only do you have to deal with the wrenching heartache of losing a loved one, but a creditor could snatch your tenancy by the entirety property in an instant.

Right of Survivorship

Community Property with Right of Survivorship

Community property with right of survivorship is only available to married couples in community property states. Under this form of property ownership, if one spouse dies, the other spouse automatically inherits the interest of the other spouse. This type of property ownership is useful for couples who want to avoid having their estate go into probate when one of them passes away.

Each state has its own specific requirements for which type of deed may be used and the manner in which the title can be held. This link has a chart shows which types of deeds are permissible and the manners in which a property title may be held under state law.

partnership lawsuit

Partnership

Two or more people can own real estate as a partnership. This tends to be the most dangerous way to own real estate. This is because when someone sues one partner the lawsuit can leave the property subject to seizure. Conversely, when there is a lawsuit concerning the property, itself, the action leaves both partners plus the property legally liable. Prior to the widespread use of the limited liability company (LLC) in about 1995, people often used limited partnerships (LP) to own real estate. The problem with the LP is that the general partner was fully liable for lawsuits against the partnership.

asset protection trust

Trust

Another way to hold your protect your home or other real estate is in a trust. A trust typically consists of a trustee who managers the trust, a settlor (grantor) who transfers the property into the trust and a beneficiary who is entitled to the benefits of the trust. The title to the property is held in the name of the trustee on behalf of the trust. The trustee must generally follow the trust verbiage and act in the best interest of the beneficiaries.

There are different types of trusts such as living trusts for estate planning purposes and land trusts for privacy of ownership. Not all states specifically mention the term land trust their statutes. However, no states forbid them either. Not all activities require a statute allowing them as a prerequisite to legality. (As an analogy, not all state statutes tell you it is okay to wear black shoes either. However, that does not stop you from wearing them.) We have established land trusts in all 50 states.

LLC Benefits

Corporation / LLC and Other Legal Entities

The most common way to own real estate that provides a legal shield is the LLC. There are provisions in the LLC statutes of most jurisdictions such that when someone sues the owner, the creditor cannot seize the company nor the assets inside. On the other side of the coin, when there is a lawsuit inside the company, an LLC can protect all members from that lawsuit. There are tax advantages as well. By default and LLC is a pass-through entity for tax purposes. That is, the income and deductions flow through to the owners without tax at the company level. However, it is usually not smart tax planning to own one’s personal residence inside of an LLC due to possible loss of the interest deduction and significant tax-free profits upon sale. So, owning a personal residence in trust can provide privacy of ownership for a personal residence.

Owning real estate in a corporation is typically a poor choice for tax purposes. When you sell real estate a C corporation may make you lose lower the long-term capital gain tax rates. An S corporation is limited on the amount of passive income it can receive (currently 25%). Real estate rental income is passive income in most cases. Anything higher than the allowed percentage gets taxed at the highest corporate rate. With rare exceptions, don’t own real estate in a corporation.