From an estate planning perspective, however, owning property with multiple owners can present some unique circumstances that warrant serious consideration. In this blog post, I’ll explore some of the key issues that arise in these situations and provide insights into how individuals can navigate them effectively to protect their interests and legacy.
Joint Tenancy
Joint tenancy is a common form of property ownership where each owner holds an undivided interest in the entire property. One feature of joint tenancy is the right of survivorship, which means that when one owner passes away, their interest automatically transfers to the surviving owner(s) outside of probate. While this can simplify the transfer of property upon death, it may also lead to unintended consequences, particularly in the context of estate planning.
Inadequate Planning: Joint tenancy can be used as a shortcut in estate planning, but it may not align with long-term goals. Sometimes a parent will put their property into joint tenancy with one child entrusting them to share the equity with their other children. However, without a legal enforcement mechanism, the child on title may not follow through and the other children can end up disinherited or in a long and protracted court battle.
Tax Implications: While joint tenancy can bypass probate fees, it may trigger unintended tax consequences, such as capital gains tax liabilities for the surviving owner(s) upon the eventual sale of the property. Additionally, the transfer of property through joint tenancy may not qualify for certain tax exemptions or deferrals available through other estate planning strategies. Speaking to an accountant can be vital to ensure that you won’t run into unintended tax consequences.
Exploring Tenants in Common
Alternatively, tenants in common ownership allows for distinct, proportionate shares of ownership among co-owners. Each owner retains the right to dispose of their share independently, and there is no right of survivorship. While tenants in common offer greater flexibility and control over property interests, they also present their own set of challenges in estate planning.
Coordination Challenges: With tenants in common, you can sell your share, but often the value of a partial ownership of a property depends on your relationship with the other owners. If this relationship breaks down, coordinating the management and disposition of property interests among multiple tenants in common can grow increasingly difficult and complex. Even if owners begin with the same goals and priorities, if those goals and priorities diverge, disagreement can enter the picture. Disputes over property use, maintenance responsibilities, or sale decisions may arise, leading to potential legal conflicts and delays.
Succession Planning: Unlike joint tenancy, tenants in common require explicit planning to ensure that each owner’s share passes according to their wishes upon death. Without a properly drafted will or estate plan, the disposition of a deceased owner’s share may be subject to intestacy laws, potentially leading to unintended beneficiaries or distribution outcomes.
Conclusion
Navigating the complexities of real estate ownership by multiple parties in the context of estate planning requires careful consideration and strategic foresight. Whether opting for joint tenancy or tenants in common, property owners are advised to make sure they understand the implications of their ownership structure and address potential challenges to estate administration ahead of time. At Sage Hill Law, our goal is to guide clients through these complexities, providing solutions to protect their interests and ensure their legacy is preserved according to their wishes.
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Disclaimer: This blog post is for informational purposes only and should not be construed as financial or legal advice. Consult with qualified professionals to create a personalized estate plan suitable for your specific circumstances.
