Understanding Title

          Title means ownership and control. How title is conveyed varies with the asset type.

          With real property title involves the Chain of Title from the original owner to each subsequent owner. Title is typically conveyed by either a Quitclaim Deed or a Warranty Deed signed by the Grantor(s).  Title “vests” (transfers) in the name of the Grantee(s) upon delivery to the Grantee, or upon recordation with the county.  In California, a Grantee may take title in various ways. 

          If the Grantee is married title should say that the Grantee is married and whether or not the property is the Grantee’s Separate Property or Community Property. For example consider, “John Doe, a Married Man, as his Sole and Separate Property,” and, “John Doe and Jane Doe, husband and wife, as Community Property.” 

          With a married person, title is not necessarily conclusive of whether the property is the Sole and Separate Property of the spouse on title or is Community Property belonging equally to both spouses.  What rights each spouse has in the assets titled in either spouse’s name may depend on whether the property is being transferred due to the couple’s divorce or due to the death of either spouse. 

          Thus, for example, if a married person purchases real property in his or her own name alone, but uses Community Property (such as earnings while married) to make the purchase (and/or uses a loan secured by marital earnings), then even though title is recorded in one spouse’s name alone the couple’s Community Property Estate may acquire an equity interest in the property.

          If title to property is held in Joint Tenancy then when the first Joint Tenant dies, the surviving Joint Tenant(s) acquire title to the entire the property, including what was the deceased Joint Tenant’s equal share, without probate.  If the last surviving Joint Tenant, however, still holds title to the property in his or her name (outside of any trust) then a Probate may become necessary when the surviving Joint Tenant dies, depending on the gross value of the last Joint Tenant’s probate estate and whether the real property goes to a surviving spouse.

          Probate only applies when more than $150,000 in gross value is left to person(s) other than a surviving spouse (or registered domestic partner).  Probate can be avoided by holding title in a Trust or by recording a revoable Transfer on Death (“TOD”) Deed”. 

          When title is held in a Revocable Living Trust, beneficial ownership remains with the Settlor who established the trust.  But, at the Settlor’s death probate is avoided because title transfers to the living Successor Trustee by means of an Affidavit of Successor Trustee.

          In a Probate title to real property is conveyed pursuant to a deed signed by the court appointed Personal Representative.  If the deed is pursuant to a probate sale then the Personal Representative, if granted full Independent Powers of Administration, may proceed without prior court authorization.  Otherwise, a court order authorizing the sale or the distribution to a beneficiary is required.

          Sometimes title to real property is transferred by just recording a court order alone.  For example, a surviving spouse can petition the court to confirm the spouse’s ownership of the deceased spouse’s real property.    

          Title to financial accounts, like brokerages and bank accounts, is maintained by the financial institution based on documents signed by the account holder(s).  At the account holder’s death there are a number of possible ways that the account assets may be transferred.  Joint accounts pass to the surviving Joint Tenant(s).  “Pay on Death” and “Transfer on Death” accounts usually pass according to Designation of Death Beneficiary forms.  Accounts held in a Trust go to the Trust beneficiaries.   Sometimes part or all of a financial account may still pass according to the deceased owner’s will or, if no will, to the surviving heirs.

          Anyone with a legal question regarding the titling or transfer of an asset should consult an attorney.