Greenville Estate Lawyer: “Beware the joint tenancy”
January 19, 2010
First installment of Do-it-Yourself estate planning disasters. Client X has three children named High, Dry, and Helpful, and no surviving spouse. Helpful is so named because she is so very helpful in caring for mom.
So helpful in fact, that Helpful moved in with mother a few years before mom’s death to take care of her, oh, and she had the deed to mom’s house transferred into her name and mom’s name as joint tenants, and she had mom’s bank account named in Helpful and mom’s name as joint tenants, so that Helpful can just write checks for mom’s benefit.
Of course, mom desires that her estate be shared equally by her children and Helpful or course assures her mother that that will occur. Mom executes an “air-tight” Last Will that Helpful found on the internet. In this case, mom was lucky, the Will is indeed airtight.
So what could be the problem? The problem is that the Will is meaningless because the house and the bank account held jointly by Mom and Helpful transfer by operation of law upon Mom’s death to Helpful. Mom’s other children High and Dry are just that. The Will has nothing to say about it.
Now, some of my colleagues may say that you could attempt to overturn the deed after the death, or you could prove that the joint bank account was nothing but a convenience account. But that’s sort of beside the point is it not? The object of estate planning should be to avoid such problems after a person’s lifetime, but this Do-It-Yourself estate plan walked right into them.
This of course does not mean that a married couple should not own their house or even cars as joint tenants with right of survivorship. For a married couple, this form of ownership works well as long as the rest of the estate plan is created with this in mind. If not, joint tenancy with right of survivorship can also create problems. When considering how to own your property, it is a good idea to discuss your ideas with an estate planning attorney, who may be able to see problems that you had not considered.
Like any decent lawyer, I need to add a disclaimer here: unfortunately, it is impossible to offer comprehensive legal advice over the internet, no matter how well researched or written. And remember, reviewing this website and my blogs doesn’t make you a client of my Firm: before relying on any information given on this site, please contact a legal professional to discuss your particular situation.