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For many people, their real estate is the largest asset they own at their death. Making sure your real estate is properly titled to meet your estate planning needs is a critical part of the estate planning process.

 

In Indiana, most jointly-owned property is titled in one of three ways: as tenants by the entireties, as joint owners with rights of survivorship, or as tenants in common. Each of these titling options can be appropriate, depending on your objectives.

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If you own property with one other person as a joint owner with rights of survivorship and your joint owner survives your death, your joint owner will become the sole owner of the property.  

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On the other hand, if you own property with another person as a tenant in common, your interest in the property is inherited by your heirs or legatees upon your death and does not necessarily transfer to your co-owner.

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Married couples can choose to title their real estate as tenants by the entireties. This type of ownership is similar to joint ownership with rights of survivorship in that the surviving owner takes all of your interest in the real estate upon your death, but a tenancy by the entirety has the added benefit of preventing creditors of one spouse from executing on real estate owned by both spouses. 

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An experienced attorney should consider how your real estate is titled when advising you regarding your estate plan. If you want your current spouse to receive the entirety of your real estate upon your death, joint ownership with rights of survivorship or tenancy by the entirety typically is advisable. Such a plan does, however, result in some risk regarding whether your children will ever receive any portion of the real estate in the future, as your surviving spouse is (in the absence of a binding agreement to the contrary) not under any obligation to transfer the real estate to your heirs upon their death. This concern can be particularly acute when you have children from a prior relationship. 

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Using a tenant in common structure enables you to ensure that your interest in the real estate is transferred to your heirs on your death, but it can result in an untenable situation in which your surviving spouse owns a portion of the real estate and your heirs own another portion. If disagreements arise after your death regarding the use of the real estate, often the only resolution is for a party to initiate a partition action in which the real estate is sold and the proceeds distributed proportionally among the owners.

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In addition to the estate planning consequences of properly titling your real estate, you should consult with your attorney about how the title to your real estate relates to the ability of your creditors to access the real estate.

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At Schulz Reagan, LLC, we research our clients’ real estate to make sure we understand how the real estate is titled before making recommendations regarding estate planning. Your family dynamics, age, financial circumstances and other details significantly impact the appropriate plan for you. Our attorneys will help walk you through your options, and make sure that the treatment of your real estate in your estate plan will achieve your goals.   

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Disclaimer: This summary is not intended to be comprehensive, and should not be construed as legal advice for your particular situation. Nothing in this website is intended to substitute for legal representation. 

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