Tuesday, July 09, 2013

Using Jointly Owned Property to Avoid Probate: Good Idea?

A common question that frequently comes up, in an effort to avoid the "evil" world of probate, is the use of joint ownership to transfer property.  I'm sure you all know that jointly owned property will automatically pass to the surviving joint owner after one dies.  For example, mom and daughter are joint owner on bank account, mom dies, daughter automatically becomes new owner of account immediately.  Simple and easy. Right?

Sometimes it works.  But, let's play some "what if" scenarios:

  • What if the daughter has creditor problems - her creditors can go after and garnish the joint account and take the money away from mom.
  • What if the daughter has tax liens and garnishment?
  • What if there are other intended beneficiaries and the daughter decides she doesn't want to share with the others.  She has no legal obligation to divide the money out.
  • What if there are bills for mom that need to be paid after her death?
  • What if the daughter decides to "help herself" or "borrow" some of mom's money while mom is still alive and using the money?  There is nothing stopping her from taking the money out.
Depending on the situation, it can be a disastrous plan to rely on this as the estate plan.  However, it is possible that everything can work out correctly, assets pass without the need of probate, lawyers get nothing,  and everyone is happy.  Kind of a roll of the dice if you ask me.  Do you want to roll the dice with your life savings?

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