The Many Ways of Owning Property in California

In California probate, one fundamental question that arises at the very beginning of the process is the one deciding what the decedent owned, in other words, the inventory of his or her assets or property. However, it is not sufficient to list the property composing the decedent's estate. It is also necessary to define how the property is owned, for property can be owned either separately (i.e. the decedent owned it 100 percent), or concurrently with other persons.

Separate Property Ownership
Separate ownership of real or personal property means that one sole person enjoys the benefits of the property and is responsible for its burdens, such as mortgage payments and taxes. You can't own a house separately if someone else makes the monthly mortgage payments, or if the house's deed mentions more than one person.

The sole owner may dispose of separate property in a will to anyone he or she chooses, and if the owner dies without a will, the property will go to heirs under intestate succession rules.

In the case of a married couple or domestic partnership, one spouse or partner can own separate property, which is usually:

• Property acquired prior to marriage;
• Property received by gift or inheritance;
• Or any property declared under a written contract to be separate.

Concurrent Ownership
Concurrent ownership of property in California is ownership by two or more people, usually falling under the following categories:

• Tenancy in Common
• Joint Tenancy
• Community Property
• Community Property with Right of Survivorship
• Life Tenancy

Each one of these classifications of concurrent ownership needs to be detailed separately, but it is important to note that the community property form only applies to decedents who were married or in registered domestic partnership at the time of their death.

If the decedent's will leaves all of his or her separate property to a spouse or partner, the elaborate rules of calculating the share of community property going to the surviving spouse or partner become irrelevant. In that case, the entire estate goes to the surviving spouse or partner, anyway.

Talk to San Diego probate attorney Scott Grossman about your situation and any questions you might have. Call us at (951) 683-3704 or (866) 840-0000 for your FREE 30-minute telephone consultation.

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