The important thing to remember about estate planning for real estate real estate is what happens with it after your death is determined by the ownership structure that you have when you buy. Obviously, the point of estate planning is to make the ownership structure as you want it.
Let’s look at the example of the ownership structure for a single family home. Often, the owners want to have what is called a survivorship deed. When the owners buy the house, the previous owners sign a deed to the new owners that says Tim and Lauren, a married couple, take title as Joint Tenants with Rights of Survivorship. The deed language may also say something like, “Tim and Lauren, for their joint lives, remainder to the survivor of them.” This means that if Tim dies while he still owns the house with Lauren, Lauren will get all of Tim’s interest in the home and Lauren will become the sole owner of the house. This happens without the need for probate and there is some simple documentation that is recorded with the county recorder’s office. It doesn’t matter if Tim has a will that says he wants his interest in the home to go to his neighbor John. The language in the deed controls over what is written in a will. It’s also important to remember that if Tim and Lauren die at the same time, their real estate will have to go through probate. It’s very important to point out that while a survivorship deed may be what married couples want, it is not the default in Ohio. The language “as joint tenants with right of survivorship” or “for their joint lives, remainder to the survivor of them” or some similar language must be on the current deed to get this ownership structure.
The default ownership structure for multiple individual owners in Ohio is called tenants in common. Let’s take our friends Tim and Lauren again. They buy a new house and the deed says, “to Tim and Lauren, married to each other.” This means that if Tim dies while he still owns the house with Lauren, Tim’s ownership in the house will either pass under his will or the laws of descent and distribution (intestacy laws). Now Tim might have a will that leaves all of his property to Lauren. In that case Lauren gets Tim’s half of the house, but it will have to go through probate. Lauren might also get Tim’s half of the house if Tim had no will. This depends on the structure of their family. If Tim and Lauren (as Tenants in Common) came to me as estate planning clients, I would research their deed in advance and offer to create a survivorship deed if that were consistent with their wishes for the transfer of their real estate.
The other type of ownership structure occurs when someone is the sole owner. If the sole owner of real property dies, the property passes through under their will or the statute of descent and distribution.
It’s important to point out that there is a way to name a beneficiary for real property owners in all three of these individual ownership ownership structures but there are risks that a client must understand before electing to put this beneficiary structure in place.
