Tenancy, what’s that?
Congratulations! You finally made it to closing, you just signed 4,000 documents and are now down to one of the last documents and your closer asks you “how would you like to take title?” At this point in the transaction you are just about done, and, if you are like most people, you have no idea what they just asked. You look at your closer with a blank stare and say “I don’t know, I don’t care, what does that even mean?” But if there are multiple parties (husband and wife or just some friends) the way you answer that question could make a big difference on how the property is handled on down the road. In general, there are two types of vesting to choose from: TENANTS IN COMMON or JOINT TENANTS. The main differences between the two types of ownership is what happens to the property if one of the owners dies. With
Joint Tenancy, the interest of a deceased owner automatically gets transferred to the remaining surviving owners, while with Tenants in Common have the interest pass on to the deceased’s heirs.
Think of it this way: with Tenants in Common each owner has an undivided interest in the entire property and that interest could be sold by itself. While Joint Tenants all share ownership and the property can only change hands as a whole.
NOTE: TENANTS IN COMMON IS DEFAULT IN KANSAS 58-501.Tenancy in common unless joint tenancy intended Real property granted to two or more persons including to a husband and wife shall create in them a tenancy in common with respect to such property unless the language used makes it clear that a joint tenancy was intended to be created
Let me tell you a quick story:
A friend of mine bought a home with her husband for their family. They were young and didn’t think that anything would happen to them anytime soon. Unfortunately, her husband suddenly passed away. Years later, she discovered the tenancy on her deed was not joint tenants and this meant that her husband’s estate was still on title. She had to go to court to deal with his estate, which was split between her and their two children. Since her children are under the age of 18, she had to have the courts appoint someone over their estates until they are of age. So in order to refinance or sell the property she has to work with her own children’s estates.
I know that closing on a new home is exciting, although somewhat anti-climatic, and you just want it to be over. But take some time to talk this over with each other so everyone knows what should happen, if something happens.
P.S. This is also a great time to mention this: since your home is probably your largest asset, it’s a good idea to have a will in place. And give a copy to a couple of people so there’s not doubt what your final wishes were in case something does happen to you.
As always: I’m not an attorney and this is not legal advice… I’d advise you to seek an attorney or an estate planner for guidance