What does an estate planning paralegal need to know about real estate?

It can be overwhelming to be a paralegal.  The scope of what you need to know can be so broad.  Often one area of law will crossover or overlap with another area.  Estate planning and real estate law are two closely related  areas of the law.

A paralegal working in estate planning should be familiar with the most common ways that real property can be titled in California:

  • as Joint Tenants – with Joint Tenancy, both (or all) owners are entitled to an undivided interest in the entire property.  Each joint tenant’s interest is based on how many joint tenants are on title.  If a joint tenant dies, his interest goes by operation of law to the surviving joint tenants.  His Last Will and Testament has no effect on property held in joint tenancy.
  • as Tenants in Common – with Tenants in Common, all of the owners have an undivided interest in the property based on their proportionate share.  There is no automatic transfer to the surviving tenants in common upon death.  If a tenant in common has a Last Will and Testament, it will control how the property passes.  If the tenant in common has no will,  it will pass by the laws of intestacy (not to the other tenants in common unless they are next of kin).
  • as Community Property – in order to take property as community property, the co-tenants must be married.  If they are, then the property will pass by operation of law to the surviving spouse upon the death of the other spouse.
  • as an individual as Trustee of a Revocable Trust – if property is held in Trust, it will pass upon the death of the Settlor/Trustee as indicated in the Declaration of Trust.  If the Settlor has provided that the property is to be distributed upon his or her death, the property will be distributed shortly after death.  If the trust provides that the property is to be held and administered by the Successor Trustee, then it may not be distributed right away but rather upon the occurrence of some other event.

The way in which a piece of real property is titled affects other estate planning decisions and documents.  Some title may need to be changed in order to effectuate or carry out the intentions of the Testator/Settlor.

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