Creating a comprehensive estate plan usually involves combining a wide variety of strategies and legal tools to reach an equally wide variety of goals and objectives. One of the most common goals of estate planning is the transfer of real property upon death. Accomplishing the transfer is as little time as possible and without the need for the property to go through probate are usually the goals. People often put an adult child on the title to a home in an effort to accomplish these goals. While joint tenancy with a child may be a solution it may not be the best solution.
Unless you plan ahead your estate assets will become part of the probate of your estate. The probate process can take months, even years, to complete. For this reason, probate avoidance is a common estate planning goal. Moreover, when the asset in question is your family home you may wish an adult child to have possession of the home as quickly as possible. One option is to create a joint ownership with your child. Real property can be jointly owned. If you create a joint tenancy with rights of survivorship this will likely accomplish your estate planning goals of immediate transfer and probate avoidance; however, there are disadvantages to this strategy a well. Moreover, there are other types of joint ownership that will not accomplish your goals so care must be used to create the right one.
Joint ownership with rights of survivorship allows the property to transfer to the co-owner immediately upon your death without the need to go through probate. Other types of joint ownership, however, will not result in an automatic transfer of the property.
Another consideration is the impact of joint ownership during your lifetime. Remember that once you give someone ownership rights you cannot take them away. Not only could your child (or his/her spouse in some cases) sell or encumber his/her interest in the property but creditors could attach a lien to the property for an unpaid debt.
There are other estate planning options that allow the immediate transfer of real property upon your death. Creating a trust, for example, might be a better option. Consult with your estate planning attorney to decide what option is best for your estate plan.
Stephen A. Mendel, Estate Planning Attorney
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