Chapter 2
Property Related to Wills, Trusts, and Estate Administration
Property: Terminology
o Real Property
o Immovable, fixed or permanent
o E.g. Land, trees, etc.
o Personal Property
o Movable
o E.g. Cars, boats, furniture
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Real Property
o Realty or Real Estate
o Immovable
o Affixed to land or buildings
o Growing on the land
“Fixture”
something so attached to the land as to
be deemed a part of it.
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Transfer
o Deed
o A writing, signed by the grantor
conveying title to real property to
grantee.
o Grantor
o person who conveys to another
o Grantee
o Person to whom real property is conveyed
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Personal Property
Chattel
o Movable
o Tangible
o Property that has a physical existence and
can be touched
o Eg. Boat, car
o Intangible
o Property that has no physical existence
o Eg. Check, IOU or Copyright
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Estate
o All property owned by a person while
alive or at the time of death.
o Probate Property
o Property subject estate administration
o Non-probate property
o Transferred without estate administration
o By operation of law, eg. Life insurance benefits
o Real and personal property held in joint
tenancy
o Trust property
o Assets with named beneficiaries
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Forms of Property Ownership
o Tenants in Severalty
o Real or personal property owned as a
sole owner
o Concurrent Ownership
o Joint Tenancy
o Tenants in common
o Tenants in entirety
o Community Property
o N.B. Can be used as a will substitute
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Tenants in Severalty
o Ownership by one person
o Probate Property
o If no will, passes by intestate succession
statutes
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Joint Tenancy
o Ownership by two or more
o Right of survivorship
o Ownership passes by operation of law without
probate
o Unities of time, title, interest and possession
o Time: Joint tenant owners take their interests in the
property at the same time
o Title: Joint tenants must receive title from the same
source
o Interest: Tenants must have an interest identical to
other tenants
o Possession: Tenants must own and hold the same
undivided possession of the whole property
o Undivided ownership interest
o Each tenant is entitled to equal use, enjoyment, control
and possession
o Can a tenant transfer their interest? What happens to
the joint tenancy?
o What are the advantages and disadvantages of a
joint tenancy?
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Tenants in Common
o Unities of Time, Title and interest But
NOT Possession
o Each owner controls their interest and
establishes a right to take or control
the whole property and share in
profits
o Interests do not have to be equal
o Property subject to probate
o Right of survivorship?
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Partition
o A remedy for a division of real
property held by joint tenants or
tenants in common so that the
individuals can hold title in severalty.
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Tenants by Entirety
o A form of joint tenancy available only
to husband and wife
o Right of survivorship
o Husband and wife cannot transfer
interest in the property to another
without written and signed consent of
the spouse
o Added bonus, creditors of individual
may not seize property of the tenancy
because the entirety is considered as
one entity
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Community Property
o All property, other than property
received by gift, will, or inheritance,
acquired by either spouse during the
marriage
o Spouses have right to convey their
individual halves by will
o Considered to be owned by both
spouses equally
o Adopted by nine states (CA
included)– Opt in –Alaska
o Cal. Prob. Code § 100
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Quasi-Community Property
o Property acquired in a common law
state and moved to community property
state or owned by spouses who move
into a community property state
o If spouse dies domiciled in community
property state, decedent’s property is
community property
o Property acquired by either spouse after
move to common law state is separate
property when purchased with separate
funds
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Separate Property
o Property owned by the husband or
wife prior to their marriage
OR
o acquired during the marriage by gift,
will or inheritance
o Can separate property be transmuted
(converted) to community property?
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Estates in Real Property
o Freehold
o An estate in real property of uncertain
duration, eg., life estate
o Fee Simple
o Largest and best and most extensive
estate possible
o No limit to duration or disposition
o Life Estate
o An estate held by a person during his or
someone else’s life
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Life Estate
o Life Tenant
o Pur Autre vie-measured by the life of
another
o Not transferable to another person
through a will
o Future interest-what is reserved to the
grantor
o Reversion-returns to the grantor or their
beneficiaries or heirs
o Remainder-goes to another person in fee
simple
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Spouse’s Right to Election
o Statutory right granted by law giving
the surviving spouse the choice
o To take against the will
o or
o That provided by statute
o Doesn’t apply in community property
states
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Waste
o Legal concept that allows an owner
to recover for permanent damage to
real property
o Any act or omission that changes the
character or value of the property.
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Leasehold Estate
o Tenancy for month/years
o Lasts for a fixed period of time
o Generally, these are tenancies operated
under the terms of a lease.
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