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Holding title to real estate

Posted April 15, 2015 in Advice Column, Windsor Heights

Our firm often sees errors in drafting deeds that create problems for owners of real estate. There are two ways of holding title to real estate in Iowa: joint tenancy and tenancy in common.

Joint tenancy is a form of ownership where all of the owners hold title together. Joint tenancy has a right of survivorship; when one owner dies, the interest is extinguished and the other owners assume the ownership. Usually, all that is requires is to record an affidavit reciting that one owner died and that title is vested in the remaining owners.

Tenancy in common is a form of ownership where each owner holds an undivided interest in the property. Unlike joint tenancy, the interest of a tenant in common does not terminate upon death. This means that upon the death of an owner, the interest passes to the decedent’s estate. Often, it is necessary to probate the decedent’s estate to move an undivided interest to heirs.

The problem arises because, until recently, Iowa law presumed tenancy in common. If a married couple took title as John Doe and Jane Doe, without the specific addition of “as joint tenants with full rights of survivorship and not as tenants in common,” then they each own 50% of the property. If John were to die, his estate would have to pass through probate so that the court system could approve the transfer of half of the property to his heirs. It is especially frustrating if that heir is Jane, his surviving spouse. The failure to create joint tenancy at the time the property was purchased can create a problem that can only be solved through a time-consuming and expensive legal solution.

On July 1, 2014, Iowa Code 557.15 was changed to redress this problem. For all deeds executed after January 1, 2015, if the grantees are married, it creates a presumption of joint tenancy, instead of tenancy in common.

The new law is designed to prevent the probate of a deceased spouse’s estate in order to convey half a house. However, the law is prospective – it applies only to deeds executed on or after January 1, 2015. Older deeds that have incorrect vesting language can still create problems for clients. It is important that you understand the differences in types of ownership so that you can ensure that you hold title to your property correctly.

 

Information provided by Ross Barnett, attorney for Abendroth and Russell Law Firm, 2560 73rd St., Urbandale, 278-0623, www.ARPCLaw.com.





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