Joint tenancy is one type of home ownership recognized in Florida. It is commonly used by spouses, as well as by unmarried couples and other family members. How your home is titled has significant estate planning implications, and this issue should always be addressed with your Florida estate planning attorney. In this post we explain the advantages and disadvantages of this type of ownership, and examine alternative types of ownership.
Joint Tenancy With Right of Survivorship (JTWROS)
Probate Avoidance… But With A Catch
When you are a joint tenant with right of survivorship, you own your home with one or more persons. An LLC or corporation may not be one of the parties. It is most often an arrangement for just two people. Each owner must own an equal percentage of the property (not, for example, 1/3 and 2/3). When one of the owners dies, the decedent’s interest in the property automatically passes to the surviving joint tenant, without the need for probate.
Probate avoidance is definitely a plus to this type of ownership, because probate is a public process that can be time consuming and costly. However, there’s a catch: Probate is avoided only upon the death of the first owner. When the surviving owner dies, there will be probate on the property if the survivor does not take additional legal steps to avoid probate. A surviving joint tenant who is grieving, far older, incapacitated or just unaware of looming probate may be unable or unwilling to take those additional estate planning steps after the death of the other joint owner. And in the unlikely event that both joint tenants die simultaneously, the property will also have to go through probate.
It Doesn’t Matter What Your Will Says
JTWROS defeats any other estate planning you may do with regard to your property. This can be a problem under certain circumstances. For example, let’s say you co-own property jointly with your partner. You want your child to inherit the home. Your last will and testament states that upon your death, your child gets the home. However, what your will says is immaterial when you pass away: by law, the property will go to the surviving joint owner, not to your child.
Creditor Claims Can Force Sale of the Property
Joint tenants must also realize that any property they own together is subject to the creditor claims of both owners. This is one of the reasons it is usually a very poor idea to own property with an adult child. A judgement against the child can force the sale of the property. If you are not the one being sued, you will receive half of the proceeds generated from the forced sale, but even so, this is generally an undesirable situation with many negative ramifications, including negative tax consequences. As you can see, the liabilities of each owner must be carefully considered when entering into a JTWROS.
Medicaid Eligibility May Be Negatively Affected
There is yet another reason that owning property with an adult child may be a problem: When you change your deed by adding an adult child as co-owner – without actually selling the co-ownership interest to the child – Medicaid may consider that to be an uncompensated gift. That could jeopardize your eligibility for Medicaid benefits for long-term care.
Tenants By the Entirety
This type of ownership is similar to joint tenants with right of survivorship, but is available only to married couples. It effectively creates a “legal fiction” that each spouse owns an undivided 100% of the property. It is the most popular type of ownership for married couples because of these benefits:
Protection from Creditors
Property held by tenants in the entirety is judgment-proof if only one of the owners is sued.
When one of the spouses passes away, the property automatically passes to the survivor without the need for probate. However, if the survivor fails to take the necessary estate planning steps to avoid probate, there will be probate upon the death of the survivor.
To transfer the property, both tenants must sign the deed. To mortgage the property, both tenants must pledge the property as security. This ensures that one spouse cannot do anything with the property without the other owner’s knowledge and consent.
Tenants in Common
Tenancy in common is generally used when there are multiple investors in the property. Each investor owns a percentage. When one owner dies, the percentage of the property owned by the decedent can be subject to probate. Each owner can do whatever he/she wants with his share. Also, a judgement against one owner can force the sale of the property.
Revocable Living Trust May Be A Better Option
Another possibility is creating a revocable trust, retitling your home in the name of your trust while still retaining all of your homestead tax deductions and other legal homestead protections. This arrangements has certain advantages:
Step-up in basis
You can pass your property to your child when you are gone and give him/her the advantage of a step-up in basis, a significant tax savings if your child sells the property.
The property need not be probated when you pass away.
Full Control of Property During Your Lifetime
During your lifetime, you remain in full control of the property. You may sell the property, or change who will receive the property upon your death, without seeking your child’s consent.
In conclusion, the manner in which you own property in Florida has huge implications for your estate plan! Contact The Karp Law Firm for assistance by calling (561) 625-1100 or emailing firstname.lastname@example.org.