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COMMUNITY PROPERTY |
JOINT TENANCY |
TENANCY IN COMMON |
TENANCY IN PARTNERSHIP |
TITLE HOLDING TRUST |
PARTIES |
Only husband & wife |
An number of persons can be husband & wife |
Only husband & wife |
Only partners - Any number |
Individuals, groups of persons, partnerships or corp., a living trust. |
DIVISION |
Ownership and managerial are equal except control of business is solely with managing spouse. |
Ownership interests must be equal. |
Ownership can be divided into any number of interests equal or unequal. |
Ownership interests is in relation to interest in partnership. |
Ownership is a personal property interest and can be divided into any number of interests. |
TITLE |
Title's in the "community". Each interest is separate but management is unified. |
There's only one title to the whole property. |
Each co-owner has a separate legal title to undivided interest. |
Title is in the partnership. |
Legal and equitable title is held by the trustee. |
POSSESSION |
Both co-owners have equal management and control. |
Equal right of possession. |
Equal right of possession. |
Equal right of possession but only for partnership purposes. |
Right of possession as specified in the trust provisions. |
CONVEYANCE |
Personal property, except necessaries, may be conveyed without consent of other spouse; real property requires written consent of other spouse, and separate interest can not be conveyed except upon death. |
Conveyance by one co-owner without the others breaks the joint tenancy. |
Each co-owner's interest may be conveyed separately by its owner. |
Any authorized partner may convey whole partnership property for partnership purposes. No partner may sell interest in the partnership property. |
Designated pretties within the trust agreement authorize the trustee to convey property. Also, a beneficiary's interest in the trust may be transferred |
PURCHASER'S STATUS |
Can only acquire whole title of community; can not acquire a part of it. |
Will become a tenant in common with the other co-owners in the property. |
Purchaser will become a tenant in common with the other co-owners in the property. |
Purchaser can only acquire the whole title. |
Purchaser may obtain a beneficial interest by assignment or may obtain legal & equitable title from the trust. |
DEATH |
On co-owner's death 1/2 belongs to survivor in severalty. 1/2 goes by will to decedent;s devisee or by succession to survivor. |
On co-owner's death, interest ends and cannot be disposed of by will. Survivor owns the property by survivorship. |
On co-owner's death interest passes by will to devisee or heirs. No survivorship right. |
On partner;s death partnership interest passes to the surviving partner pending liquidation of partnership. Share of deceased than goes to estate. |
Successor beneficiaries may be named in the trust agreement, eliminating the need for probate. |
SUCCESSOR'S RIGHTS |
If passing by will, tenancy in common between devisee and survivor results. |
Last survivor owns property. |
Devisee of heirs become tenants in common. |
Heirs or devisee have rights in partnership interest but not in specific property. |
Defined by the trust agreement, generally the successor becomes the beneficiary and the trust continues. |
CREDITOR'S RIGHTS |
Property of community is liable for debts of either spouse which are made before or after marriage. Whole property may be sold in execution sale to satisfy creditor. |
Co-owner's interest may be sold on execution sale to satisfy creditor. Joint tenancy is broken, creditor becomes a tenant in common. |
Co-owner's interest may be sold on execution sale to satisfy creditor. Creditor becomes a tenant in common. |
Partner's interest can not be sold separately by personal creditor but share of profits may be obtained by personal creditor. Whole property may be sold on execution sale to satisfy partnership creditor. |
Creditor may seek an order for execution sale of the beneficial interest or may seek an order that the trust estate be liquidated and the proceeds distributed. |
PRESUMPTION |
Strong presumption acquired by husband and wife is community. |
Must be expressly stated. |
Favored in doubtful cases except husband and wife case. |
Arises only by virtue of partnership status in property placed in partnership. |
A trustee is expressly created by an executed trust agreement. |