Legal Question in Real Estate Law in California

Two living trusts hold deed to real property.

My domestic partner and I each have seperate living trusts and want to put our equally owned real property into each of our own trusts (fifty percent share into each trust.)Should the grant deed reflect the ''grantees'' as the trustees of each trust as joint tenants or tenants in common? Or no designation at all? What are the tax liabilities if it is held as two trusts with joint tenants? When put into a trust is there any reason to hold the real property as joint tenants (by the two trusts) when the trust makes each or us the others beneficiary?

Asked on 12/22/05, 2:52 pm

2 Answers from Attorneys

Ken Koenen Koenen & Tokunaga, P.C.
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Re: Two living trusts hold deed to real property.

Joint tenants is automatic right of survivorship. If you are each leaving your half of the property to the other, joint tenancy will work. If you are each planning to leave the property to different people, then tenants in common would be the correct manner of taking title.

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Answered on 12/22/05, 3:21 pm
Bryan Whipple Bryan R. R. Whipple, Attorney at Law
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Re: Two living trusts hold deed to real property.

This is a good question. I think the analysis starts with how you hold title to the equally-owned real property now; you also don't say whether you are registered domestic partners under the new California law. Registered domestic partners' property is often subject to different rules (e.g., some of it may be community property).

Civil Code section 683, defining joint tenancy, certainly seems to make it possible for two trustees of two separate trusts to hold title as joint tenants. I believe that in transferring the property to the trusts particular care in drafting would be necessary to assure that the requirement of a simultaneous transfer of equal interests was met.

On the other hand, I see no particular reason for creating or maintaining joint tenancy once the trusts are set up....properly-drafted trusts can handle your desires and expectations as effectively or even more so than reliance on joint tenancy.

Note that there is also the concept of a "joint trust," in which both partners place their property in a single trust, which can have one or more trustees. Although sometimes used, most lawyers feel the problems outweigh the benefits, and separate trusts (as you seem to envision) are more common. The problems include the tax issues you allude to (whether a taxable gift occurs, etc.).

My advice would be to have two trusts drawn up by an attorney or attorneys, then fund them with whatever interests you currently hold in the real property through separate grant deeds, and to have a local title company prepare and record the deeds using whatever form of deed they customarily use, and inserting whatever granting clause they recommend under the circumstances.

A plain-vanilla set of transactions is least likely to bring about tax problems or later difficulties in administration by successor trustees upon a trustor's death.

Upon funding your trusts, be sure to notify your lender, insurer and tenants, if any.

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Answered on 12/22/05, 4:02 pm

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