chapter 2 property related to wills, trusts, and estate administration
TRANSCRIPT
Chapter 2Property Related to Wills, Trusts, and Estate
Administration
Property: Terminology
o Real Propertyo Immovable, fixed or permanento E.g. Land, trees, etc.
o Personal Propertyo Movableo E.g. Cars, boats, furniture
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Real Property
o Realty or Real Estateo Immovableo Affixed to land or buildingso Growing on the land
“Fixture”something so attached to the land as to be deemed a part of it.
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Transfer
o Deedo A writing, signed by the grantor
conveying title to real property to grantee.
o Grantoro person who conveys to another
o Granteeo Person to whom real property is
conveyed
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Personal Property
Chattelo Movableo Tangible
o Property that has a physical existence and can be touched
o Eg. Boat, car
o Intangibleo Property that has no physical existence
o Eg. Check, IOU or Copyright
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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 propertyo Transferred without estate
administrationo By operation of law, eg. Life insurance
benefitso Real and personal property held in joint
tenancyo Trust propertyo Assets with named beneficiaries
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Forms of Property Ownership
o Tenants in Severaltyo Real or personal property owned as
a sole owner
o Concurrent Ownershipo Joint Tenancyo Tenants in commono Tenants in entiretyo Community Property
o N.B. Can be used as a will substitute
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Tenants in Severalty
o Ownership by one persono Probate Propertyo If no will, passes by intestate
succession statutes
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Joint Tenancyo Ownership by two or moreo 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 interesto Each tenant is entitled to equal use, enjoyment,
control and possessiono 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 probateo Right of survivorship?
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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.
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Tenants by Entirety
o A form of joint tenancy available only to husband and wife
o Right of survivorshipo 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
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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 § 100
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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
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Separate Property
o Property owned by the husband or wife prior to their marriage
ORo acquired during the marriage by
gift, will or inheritanceo Can separate property be
transmuted (converted) to community property?
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Estates in Real Property
o Freeholdo An estate in real property of
uncertain duration, eg., life estate
o Fee Simpleo Largest and best and most
extensive estate possibleo No limit to duration or disposition
o Life Estateo An estate held by a person during
his or someone else’s life
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Life Estate
o Life Tenanto Pur Autre vie-measured by the
life of anothero Not transferable to another
person through a willo Future interest-what is reserved
to the grantoro Reversion-returns to the grantor or
their beneficiaries or heirso Remainder-goes to another person
in fee simple
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Spouse’s Right to Election
o Statutory right granted by law giving the surviving spouse the choiceo To take against the will
o or
o That provided by statute
o Doesn’t apply in community property states
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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.
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Leasehold Estate
o Tenancy for month/yearso Lasts for a fixed period of timeo Generally, these are tenancies
operated under the terms of a lease.
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