In Your Individual Name
This is the simplest and most common way property is held, but it is not without its shortcomings. Property titled in your name only can only be controlled by you. This may not be a problem so long as you are in good health and of sound mind, but if you are incapacitated or deceased, there is no one to control the property. A durable power of attorney allows your agent to control the property in the case of incapacitation, but even if you do have a durable power of attorney in place, some financial institutions require use of their own forms or otherwise make your chosen agent’s job very difficult. And if you become incapacitated without having previously executed an effective durable power of attorney, court action to establish a conservatorship will be necessary. Once the court gets involved, it will stay involved until you are deceased.
A will is of no use controlling property titled in your name while you are still alive, but it can designate who will receive that property when you die. Of course, property transferred in a will has to go through Oregon probate, which means court involvement.
Also, any property that is held in your name is always subject to the claims of your creditors.
Much like holding the property in your own name, tenants-in-common does not provide a solution for incapacitation or death. Each owner holds a portion of the property in their name, and each person’s share will be transferred as his or her will directs (or if there is no will, as Oregon’s intestate succession act provides). With a normal tenancy-in-common titling, there is no right of survivorship amongst owners, which means co-owners have no right to each others share upon death. Tenants-in-common arrangements with multiple parties also create issues when there is disagreement about how to use the property (for example whether to sell, lease, encumber, etc.). Co-ownership inherently means a loss of control. Tenancy-in-common agreements (TIC agreements) can remedy this to some extent, but where property is to be held subject to rules of governance, a trust or LLC may be more appropriate where a trustee or LLC manager/member can make decisions based on the trust instrument or operating agreement.
Co-ownership also exposes your assets to the debts and liabilities of your co-owners, in addition to your own.
Tenants-in-Common but with a Right of Survivorship
Survivorship rights mean that co-owners take each others’ interests upon death. Remember that Oregon doesn’t provide for joint tenants with a right of survivorship (the reasons and history of this we will discuss in a separate article), but rather as tenants-in-common but with a right of survivorship. Survivorship rights are a means of delaying probate. Eventually, the last owner will be deceased and the property will need to be probated. Aside from survivorship, the other problems with co-ownership in tenancy-in-common remain in full force.
For married, couples, tenancy by the entirety (which has survivorship rights) can be accomplished by holding property as “husband and wife.” Many, if not most, married couples in Oregon hold property in this way. It comes with the same advantages and disadvantages as tenants-in-common but with a right of survivorship, except for one distinction: transfers of property held as tenants-by-the-entirety cannot freely transfer their individual interest in the way tenants-in-common can (assuming no TIC agreement says otherwise).
Revocable Living Trust
With a living trust, your trustee can hold title to your property. A revocable living trust can be the most elegant solution to property control in the event of incapacity or death. You may designate who will serve as trustee and successor trustee, and even if you are initially serving as trustee your successor trustee can take over in the event of your incapacity or death. Your successor trustee is always bound by the terms of your trust, and after your death the property will be maintained or distributed as your trust instrument directs.
A revocable living trust will not, however, protect your property from the claims of your creditors while you are still alive. Because the trust is revocable, you will be deemed to control the assets. An irrevocable trust will protect your assets from creditors, but you give up significant control because you may never transfer property out of the trust.
A Limited Liability Company
The LLC is its own legal entity (a person, if you will). An LLC, whether single member or multi-member, can hold title to property. An LLC can, through an operating agreement, limit how a property can be used, sold, or encumbered. It can also, with the correct buy-sell and transfer provisions, limit how ownership in the LLC can be transferred. An LLC can also be owned by a trust or trusts for more complex estate planning scenarios. This could also be accomplished with a corporation or partnership arrangement, but the simplicity and flexibility of an LLC makes it a better choice for a holding company.