Myth 1: If you leave real property to someone, that person will decide what happens to it when they die.
The way you leave real property to a beneficiary determines who decides its fate after his or her death. If you give property outright to a beneficiary, it becomes solely theirs, allowing them to decide who inherits it when they die.
Joint Tenants with Right of Survivorship:
If you leave the property to two or more people as joint tenants with the right of survivorship, the last surviving owner decides what happens to the property. The interest of a deceased owner automatically transfers to the surviving joint owner (s).
Tenants in Common:
If you leave the property to two or more people as tenants in common, each owner can dictate what happens to their share of the property when they die.
Right of Occupancy Trust:
With a right of occupancy trust, the beneficiary has the right to use and enjoy the property during his or her lifetime (or for a shorter specified period), but you decide who inherits the property by including instructions in your last will and testament or trust agreement. Can also call this a Life Estate.
Myth 2: All instructions relating to real property have to be published with the county recorder. 
Typically, only ownership information is recorded with the county recorder. While a deed may list certain restrictions, this is not always the case. When property is transferred to a trust, a deed showing trust ownership is recorded, but the trustee’s instructions are detailed in the trust agreement, which is not usually recorded. This allows the instructions to remain private and changeable by you until you are no longer mentally capable or have passed away, keeping it out of public records.
Question 1:
If my surviving spouse has a right to occupy my home during his or her lifetime, who ensures that my children are not left with a run-down property when my spouse dies?
A right of occupancy trust owns the property, and its creation can be included in a last will and testament or trust agreement. The trustee, responsible for managing the trust’s assets, ensures the beneficiary uses the property appropriately. The spouse with the right of occupancy must maintain the property in good condition, either by taking care of it themselves or notifying the trustee of any issues that need attention.
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If you have any more questions or need further information about planning with a right of occupancy trust, please schedule an appointment with us. We are here to help you customize an estate plan that protects your home and your loved ones.
