There are several methods of holding title to a property. Each method can have potential drawbacks for estate planning or asset protection, so it’s important to work with an experienced attorney to determine which choice is best for your situation.
The sole owner title lists a single unmarried individual. If a married person wishes to use this title option to maintain separate property, the title insurance company will require the spouse of the person acquiring the title to specifically relinquish their right, title, and interest to the property.
Tenants in Common
This is the default way to hold a title in Virginia if a property has multiple owners. Each person has an equal right to possess the entire property, but tenants in common do not have the rights of survivorship that are present in a joint tenancy. If an owner dies, their interest passes according to the terms of the will instead of automatically passing to the surviving owner.
A lack of asset protection can be a problem with this title method. Liens and judgments against one of the owners attach to that owner’s portion of the property, but this can lead to the entire property being sold to satisfy the debt obligation.
Joint Tenancy With Right of Survivorship
In this method, each individual owns an undivided interest in the entire property. “Survivorship” means that if one person dies, their interest is automatically transferred to the surviving joint tenant.
Like tenants in common, joint tenancy with right of survivorship presents problems with asset protection. The creditors of either person can place liens against the home. While they can't collect from the non-debtor's share of ownership, they do have the right to force the sale of the property to collect from the debtor’s share.
Tenants by the Entirety
This method of holding a title can only be taken by a legally married couple. When one person dies, the property automatically becomes the sole property of the surviving spouse. If the couple divorces, the title reverts to tenants in common.
Tenancy by the entireties is different from a joint tenancy because one owner cannot unilaterally convey their interest in the property, and the tenancy cannot be severed except by the action of both parties. As such, any deed disposing of an interest in the property must be signed by both owners.
Judgments or liens don’t attach to the property unless they are against both parties. The property can’t be sold to fulfill the debt obligations of one person.
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