Tuesday, August 2, 2011


Question: My husband and I hold title to our home as husband and wife as community property. Does that mean if he dies, I will automatically own that property?

Answer: The answer is not always an absolute “yes” to this question.

There are various ways people can hold title to assets. Often, how people hold title on their property, such as real estate and bank accounts, may be the only estate planning they have done. Unfortunately, it may NOT always be what their estate planning wishes are. Additionally, if people have done a trust and/or a will, how they hold title to some of their assets may completely conflict and sometime even override what their trust or will provides.

For example, let’s say you and your husband bought your home last year and took title as “husband and wife, as community property”. It was your mutual intent that when one of you dies, the other will own the home 100% and without any court involvement. Now, if you and your husband have no will or trust or if your will or trust provides that all your community property shall pass to the surviving spouse, then the answer to the question would be “yes”.

But now let’s say your husband has a will which provides that upon his death, all of his estate (this includes his separate property and his 50% interest in the community property) is to be shared equally between you and his two children from his first marriage. In this scenario, when your husband dies, you would NOT inherit his entire share of the home, but would have to split it (along with the rest of his estate) with his two children. The reason is that in 2001, California adopted a new form of title “community property with right of survivorship”. This is different than the form of title “community property”. When someone holds title as “community property” it provides a person the ability to bequeath their ownership interest in their community property assets to someone other than a surviving spouse through wills or trust. When you hold title as “community property with right of survivorship”, you cannot. The surviving spouse becomes the sole surviving owner of all community property under this form of title, regardless of what wills or trusts may provide. This is similar to joint tenancy where the surviving joint tenant becomes sole owner upon death.

So what does the form of title say about you and your estate plan? To find out more and call 925-516-1617 to schedule a consultation at ALVIS FRANTZ AND ASSOCIATES, where your legal challenges just got easier!

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