Alternatives to a Will

 

Alternatives to Wills and Trusts

Joint Tenancy – What is it?

This is a way to hold possession of property that has at least two owners (it can be more). What is different about Joint Tenancy is that the survivors become the sole owners when one of the other owners dies. This is known as the “right of survivorship.”

Joint tenancy among spouses is typically called a tenancy by the entirety. It is similar to joint tenancy in that the surviving spouse does get the totality of the property upon the death of the first spouse.  However, there are some differences, including some tax advantages and the inability to split the property (which can be a good thing in asset protection planning).

Justice is blind, scales of justice

Tenancy in Common – What is it?

Tenancy in common is an additional way to own property together. Similar to joint tenancy, two or more people together own the asset, but it does not give you the right of survivorship. What that means is that when a co-owner dies, their interest will pass to their heirs (or beneficiaries under their trust) and not pass to the other owners.

Joint Tenancy – How do you create one?

State regulation manages how a joint tenancy is created in both personal and real property. When property is transferred to 2 or more individuals who are not couple, then the act or conveyance must expressly state an intention to produce a joint occupancy.  Thus, the deed to real property must state that the property will be held not as tenants in common.  Instead, it will be held as joint tenants with rights of survivorship.

A joint tenancy could be developed in practically any type of sort of property. Various sorts of collectively held property have various features. Either joint tenant of a savings account usually can withdraw any of the amounts in the account, relying on the method the account arrangement is composed.  All joint tenants, including partners, should authorize acts and contracts to sell or otherwise transfer property.

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Joint Tenancy – Can I do this instead of Having a Will?

Absolutely Not! A Will (or Trust) is the only way you can you know, with certainty, that your assets will be passed to those that you want.  A will, appropriately written and executed, will properly determine how your estate will be administered and what you want to be done. Practically every person must have a will, even though she or he has actually set up their property to pass by joint tenancy, recipient designation (just like life insurance coverage, and TOD classifications) or through a revocable trust.

Joint tenancy should not be treated as a omnibus provisions, and applies only to the particular residential property explained in the instrument producing the joint tenancy. What’s worse is that joint tenancy does have a tendency to accidentally disinherit those persons that are supposed to get the asset.  See the example below.

Remember, when you create a joint tenancy with someone else, you are actually giving away ownership in that property. Except for joint checking account, it could not be revoked or altered without the other person’s cooperation, and for real residential property the cooperation of the spouse is additionally called for. Finally, if a joint tenancy that you create with someone aside from your spouse could result in a present tax obligation.

A will can be changed when your life situation changes. You should consider a Will as the foundation of your estate strategy.

Joint Tenancy – Can it Avoid the Expenses of Probate?

Some individuals (and some legal representatives) think this to be the case. But it’s not! Our estate attorneys generally never use joint tenancy to prevent probate expenditures. There are just way too many issues that develop. Your estate strategy could utilize some joint tenancy, however it’s merely not an efficient tool to prevent probate.

Money, coins

Why? Accidental Disinheritance. Take the following example. Jim and Jane have actually been married for twenty-five years and have two children (Jack and Jill). They title every little thing in joint tenancy. Regrettably, Jane perishes of a rare blood disease. Jim mourns for his wife for fifteen years, however, then gets remarried. Again, he and his brand-new spouse, Esmerelda, title every little thing collectively. After 5 years, Jim dies of a cardiac arrest. Esmerelda and the kids talk about Jim’s residential property that he vowed would go to his children, however she passes away quickly after that of grief. Every single piece of property goes to Esmerelda’s children and not Jack and Jill, who are now left without anything of their dad and mother’s. They beg for the pictures, yet Esmerelda’s children do not want anything to do with Jack and Jill. Jim never wished this for his kids, who are left without any cash, any type of family members heirlooms or anything from their parents.

This tale is all too usual and could be stopped with a proper estate plan.

Joint Tenancy – It’s not all bad – what are some advantages?

Several advantages of Joint Tenancy are:

  • Convenience.  Look, Joint Tenancy can be a very convenient way to pass property, especially at the death of the first spouse.  This is because the home passes to the survivor without the demand for probate administration. Typically, a death certification is all that is needed to transfer the property.
  • Cost.  When you don’t have a lot of assets, it is easy to assume that the first to die wants all of the property to pass to the surviving spouse.  Joint tenancy is a convenient method for this transfer.
  • Vacation Home.  It might be beneficial for a vacation home situated in another state to be possessed in joint title with someone else. Thus, the probate laws of that state can be avoided and the title passed to the survivor quickly.
  • The household residence is often composed joint names, particularly where the surviving partner is likely to continue to make use of the property as his/her home.  In those situations, joint possession might be a proper type of making sure continuity of possession.
  • A joint checking account or interest-bearing accounts could offer a couple both comfort and versatility, as funds may be instantly available if one partner perishes.

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Joint Tenancy – What are the Drawbacks?

Some of the drawbacks include:

  • Ownership.  The person who originally has the property, and consequently puts it in a joint occupancy, is no longer the sole owner.
  • Sales.  You cannot just sell your property, unless you have the consent and cooperation of the other joint owners.
  • Common Catastrophe.  If you both die in a common mishap or catastrophe, and it could not be determined that died first, major legal issues and a rise in the price of probate might occur.
  • Conservatorship.  If a conservator is selected regarding the original proprietor, the probate court’s authority might be needed to use the possession on behalf of that owner, raising the price of the conservatorship.
  • If minors or legitimately disabled grownups are owners in the property, costly and frustrating conservatorship proceedings might be needed.
  • Disagreements.  Finally, it’s always a consideration in joint ownership situations is that the owners may fight about how the property is to be used. If they do disagree, a time consuming and pricey lawsuit might be needed for the original proprietor to exercise his or her intents for the asset.
  • Bankruptcy.  In bankruptcy, the proceedings could include all of the co-owners, including judgments against them.
  • The financial management advantages of trusts are eliminated, particularly where aged parents or minor youngsters are entailed, as are the possible tax-savings features of trusts and estates. Possessions may not be available to the administrator of a deceased joint proprietor’s estate. In such a circumstance it could then be necessary to market various other properties, potentially at a discount, to satisfy tax repayments or other money should settle the events of the deceased.

Joint Tenancy – Tax Consequences

Major tax disadvantages might arise from the creation of a joint tenancy.  If the property that is owned at the time of death consists all of joint proprety, life insurance and other benefits, exceeds a particular amount, then the estate of the deceased will certainly be subject to state inheritance and federal tax. Inheritance tax are figured regardless of the title of the property.

Joint Tenancy – Checking Accounts

Don’t do it. Some folks will have one of their children, or even a friend,  on their checking account to help them draft checks for expenses.  They do this just to make sure that creditors are paid in case that they cannot do so themselves.

But at their death, the whole account becomes the property of the other individual; many others beneficiaries will certainly not share in it. Further, the misappropriation of funds is many times felt by the beneficiaries.  What’s worse is when the beneficiaries have an expectation of funds and find out that someone else was on the checking account.  There is a lot of litigation regarding this, even when the original co-owner has done nothing wrong.  It’s simply the misalignment of expectations and reality.

The Eastman Law Firm

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Leawood,
Kansas
66224

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