Many people believe that they can avoid the need for a will or probate by designating a joint owner on their property, such as a bank account or the deed to real estate. Naming a joint owner may not avoid probate, in fact, in some cases it may end up delaying the probate process.
Problems With Joint Ownership
In addition to failing to avoid probate, joint ownership can great other problems during lifetime. By jointly owning property, you may find yourself party to a lawsuit if your co-owner is sued or, the asset could be lost to a creditor of your co-owner. If your co-owner becomes incapacitated, you could find yourself “owning” the property with the co-owner’s guardian or the courts. If your co-owner is married, there is a risk of the property being subject to divorce proceedings. With something like a bank account, there is the risk that the co-owner could go on a spending spree and drain the account.
In some situations creating a joint ownership can also create gift tax or income tax problems. Under the current income tax laws, it is often more beneficial from a tax perspective for a person to receive property by a will rather than that property being gifted to him in the form of joint ownership during the original owner’s lifetime. In addition, adding a co-owner to property can create gift tax liabilities.
Example: Let’s assume that Mary owns a piece of real estate that she wishes her brother, Bob, to receive upon her death. Rather than designate such in a last will and testament, Mary instead adds Bob as a co-owner on the deed to the real estate. A few months later, while driving to work one morning, Bob is involved in a severe automobile accident. As a result of the accident, Bob incurs significant medical bills. Unable to work due to his injuries, Bob has difficulty paying the medical bills and the hospital files a lien on the real estate owned jointly by Mary and Bob. As a result, the courts force the real estate to be sold, against Mary’s will, to satisfy Bob’s medical debts.
Joint Ownership Problems Specific to Real Estate
In addition to the above, the nature of real estate can cause additional joint ownership problems. In the eyes of the law, real estate is considered a unique item that typically is indivisible. As such, if a problem arises, the courts will order property to be sold to satisfy the dispute rather than attempting to divide the property. This is why, in the example of Bob and Mary above, the courts could force Mary to sell the real estate against her wishes to satisfy the hospital’s lien. Similarly, assume Bob’s accident never occurred. If Mary simply decided she wanted to sell or refinance the real estate, with Bob as a co-owner, Mary would need to obtain Bob’s approval and signature to conduct the sale or refinance even though the property originally belonged solely to Mary.
If you are considering create joint ownership in property, you should discuss the particulars of your situation and the legal risks of joint ownership with your attorney before proceeding.