Chapter 2 Property Related to Wills, Trusts, and Estate Administration

Property: Terminology o Real Property o Immovable, fixed or permanent o E.g. Land, trees, etc. o Personal Property o Movable o E.g. Cars, boats, furniture 2

Real Property o Realty or Real Estate o Immovable o Affixed to land or buildings o Growing on the land “Fixture” something so attached to the land as to be deemed a part of it. 3

Transfer o Deed o A writing, signed by the grantor conveying title to real property to grantee. o Grantor o person who conveys to another o Grantee o Person to whom real property is conveyed 4

Personal Property Chattel o Movable o Tangible o Property that has a physical existence and can be touched o Eg. Boat, car o Intangible o Property that has no physical existence o Eg. Check, IOU or Copyright 5

Estate o All property owned by a person while alive or at the time of death. o Probate Property o Property subject estate administration o Non-probate property o Transferred without estate administration o By operation of law, eg. Life insurance benefits o Real and personal property held in joint tenancy o Trust property o Assets with named beneficiaries 6

Forms of Property Ownership o Tenants in Severalty o Real or personal property owned as a sole owner o Concurrent Ownership o Joint Tenancy o Tenants in common o Tenants in entirety o Community Property o N.B. Can be used as a will substitute 7

Tenants in Severalty o Ownership by one person o Probate Property o If no will, passes by intestate succession statutes 8

Joint Tenancy o Ownership by two or more o Right of survivorship o Ownership passes by operation of law without probate o Unities of time, title, interest and possession o Time: Joint tenant owners take their interests in the property at the same time o Title: Joint tenants must receive title from the same source o Interest: Tenants must have an interest identical to other tenants o Possession: Tenants must own and hold the same undivided possession of the whole property o Undivided ownership interest o Each tenant is entitled to equal use, enjoyment, control and possession o Can a tenant transfer their interest? What happens to the joint tenancy? o What are the advantages and disadvantages of a joint tenancy? 9

Tenants in Common o Unities of Time, Title and interest But NOT Possession o Each owner controls their interest and establishes a right to take or control the whole property and share in profits o Interests do not have to be equal o Property subject to probate o Right of survivorship? 10

Partition o A remedy for a division of real property held by joint tenants or tenants in common so that the individuals can hold title in severalty. 11

Tenants by Entirety o A form of joint tenancy available only to husband and wife o Right of survivorship o Husband and wife cannot transfer interest in the property to another without written and signed consent of the spouse o Added bonus, creditors of individual may not seize property of the tenancy because the entirety is considered as one entity 12

Community Property o All property, other than property received by gift, will, or inheritance, acquired by either spouse during the marriage o Spouses have right to convey their individual halves by will o Considered to be owned by both spouses equally o Adopted by nine states (CA included)– Opt in –Alaska o Cal. Prob. Code §

Quasi-Community Property o Property acquired in a common law state and moved to community property state or owned by spouses who move into a community property state o If spouse dies domiciled in community property state, decedent’s property is community property o Property acquired by either spouse after move to common law state is separate property when purchased with separate funds 14

Separate Property o Property owned by the husband or wife prior to their marriage OR o acquired during the marriage by gift, will or inheritance o Can separate property be transmuted (converted) to community property? 15

Estates in Real Property o Freehold o An estate in real property of uncertain duration, eg., life estate o Fee Simple o Largest and best and most extensive estate possible o No limit to duration or disposition o Life Estate o An estate held by a person during his or someone else’s life 16

Life Estate o Life Tenant o Pur Autre vie-measured by the life of another o Not transferable to another person through a will o Future interest-what is reserved to the grantor o Reversion-returns to the grantor or their beneficiaries or heirs o Remainder-goes to another person in fee simple 17

Spouse’s Right to Election o Statutory right granted by law giving the surviving spouse the choice o To take against the will o or o That provided by statute o Doesn’t apply in community property states 18

Waste o Legal concept that allows an owner to recover for permanent damage to real property o Any act or omission that changes the character or value of the property. 19

Leasehold Estate o Tenancy for month/years o Lasts for a fixed period of time o Generally, these are tenancies operated under the terms of a lease. 20