How can I protect my privacy in real estate transactions?
*How you hold title of real estate will determine how much privacy you will have.
In the typical home purchase a single individual will hold title to the property in his or her name. Similarly, a married couple could hold title in their individual names with four common choices: as ‘Tenants In Common,’ as ‘Joint Tenancy’, as ‘Community Property With Right of Survivorship,’ or as ‘Trustees Of A Trust.’
There are many ways to hold title to real estate. How the title is held will affect how much privacy the owner will enjoy. The most common way for an individual to title property is in his/her sole name, whereas for a married couple, it is often as Joint with Right of Survivorship or as Tenants by the Entirety. This article explores ways in which to protect the privacy of the buyer.
The three most common ways to hold title to property for enhanced privacy purposes is either through an LLC, a revocable trust or realty trusts, also known as “land trusts” or “nominee trusts.” The main attributes of these structures, often referred to as privacy vehicles, are explained below, but it is important to note that an attorney should always be consulted, as various state laws impact how an LLC or a trust is structured and whether they are even permitted. In addition, an attorney should be consulted to determine if any of these structures will have an impact on the availability of the homestead exemption if a particular state currently allows for this tax benefit.
Tenants In Common
Tenancy in common is a way that multiple related or unrelated people can hold title to real property. Ownership interest percentages do not have to be equal and those percentage shares (each individual’s % interest) can be specified in the deed. When you hold title using ‘tenants in common,’ upon the death of any individual owner, that owner’s interest is then controlled by his or her will, or in the absence of a will through intestate succession, which means the who eventually gets the property (heirs, beneficiaries or others) of the decedent will be sorted out in a California probate court.
Joint tenancy means that each person owns an undivided interest in the entire property, so when one owner dies the remaining owner[s] will automatically receive the deceased owner’s interest. Because the deceased owner’s interest automatically passes to the remaining owner[s], probate can be avoided for this property unless and until there are no remaining owners. In other words, probate will occur when the last owner in joint tenancy dies. See attached for probate fees chart. Since a will or trust does not control where the property goes on the death of a joint tenant, sometimes joint tenancy is thought of as a quick estate plan. For joint tenancy property owned by married couples, on the first spouse’s death the basis of the property will be adjusted to the fair market value at the time of the first death (called a “step-up” in basis) for the half attributed to the deceased spouse. This will reduce any capital gains taxes upon the sale of the property by the surviving spouse. Joint tenancy seems to be the most common way to take title, but it may not be the best way. For example, parents may not realize that by adding a child’s name as joint tenant, they are actually giving that child an interest in the property that will be subject to the child’s creditors.