6 Dangers of Joint Property Ownership

In an effort to avoid the some assets passing through the probate process, some people often set up bank accounts or real estate so that these assets are owned jointly with a spouse or other family member. The appeal of joint property ownership is that when one owner dies, the surviving owner will automatically inherit the property without it having to go through probate. Joint tenancy with right of survivorship is perceived to be easy to setup since it can be done at the bank when opening an account or title company when buying real estate.

That’s all well and good, but joint property ownership can also cause unintended consequences and complications. And it’s worth considering some of these, before deciding that joint ownership is the best way to pass on assets to your heirs.

So let’s explore some of the common problems that can arise with joint ownership of assets.

6 Common Risks of Joint Property Ownership

1. The other owner’s debts become your problem.   Any debt or obligation incurred by the other owner could affect you. If the joint owner files bankruptcy, has a tax lien, or has a judgment against them, it could cause you to end up with a new co-owner – your old co-owner’s creditors! For example, in Maryland, if you and your adult child jointly own your home, and your child has a pre-existing debt you don’t know about, your child’s creditors can commence legal action to claim your child’s interest in your home to satisfy your child’s pre-existing debt. while “your” equity of the property won’t necessarily be taken, that’s little relief when the house you live in is put up on the auction block!
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2. Your property could end up belonging to someone you don’t intend.   Some of the most difficult situations come from blended families. If you own your property jointly with your spouse and you die, your spouse gets the property. On the surface, that may seem like what you intended, but what if your surviving spouse remarries? Your home could become shared between your spouse and her second spouse. And this gets especially complicated if there are children involved: Your property could conceivably go to children of the second marriage, rather than to your own.
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3. You could accidentally disinherit family members.   As discussed in more depth here, if you designate someone as a joint owner and you die, you can’t control what s/he does with your property after your death. Perhaps you and an adult child co-owned a business. You may state in your will that the business should be equally shared with your spouse or divided between all of your kids; however, ownership goes to the survivor – regardless of what you put in your will.
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4. You could have difficulty selling or refinancing your home.   All joint owners must sign off on the sale of a property jointly owned. Depending on whether the other joint owners agree, you could end up at a standstill from the sales perspective. That is unless you’re willing to take the joint owner to court to force a sale of the property. (No one wants to sue their family members, not to mention the cost of the lawsuit.)
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   And what if your co-owner somehow becomes incapacitated, through accident or illness? In that case, you may have to petition a court to appoint a guardian or conservator to represent the co-owner’s interest in the sale. While you and your co-owner always worked together, an appointed guardian may see his responsibility as protecting the other owner’s interest–which might mean going against you.
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5. Joint property ownership might trigger unnecessary capital gains taxes.   When you sell a home for more than you paid for it, you usually pay capital gains taxes–based on the increase in value. Therefore, if you make an adult child a co-owner of your property, and you sell the property, you’re both responsible for the taxes. Your adult child may not be able to afford a tax bill based on decades of appreciation.
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   On the other hand, heirs only pay capital gains taxes based on the increase in value from when they inherited the asset, not from the day you first acquired it. So often, while people worry about estate taxes, in this case–inheriting a property (rather than jointly owning it) could save your heirs a fortune in income tax. And with today’s generous $5.49 million Federal estate tax exemption and $3 million Maryland estate tax exemption, most of us don’t have to worry about the estate tax (but the income tax and capital gains tax hits almost everyone).
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6. You could cause your unmarried partner to have to pay a gift tax.    If you buy property and place it in joint tenancy with an unmarried partner, the IRS will consider that to be a taxable gift to your partner. This can create needless paperwork and taxes.

Alternatives to Joint Property Ownership

So what can you do? These decisions are too important and complex to be left to chance. Consult Andre O. McDonald, a knowledgeable Howard County attorney with the experience in estate planning you need. Mr. McDonald will help you decide the best estate planning strategy to manage your assets to meet your needs and goals.

Our team at McDonald Law Firm can assist you in planning to reduce estate taxes, avoid potential legal pitfalls, and set up a trust to protect your loved ones. We understand not only the legal issues but the complex layers of relationships involved in estate planning. We’ll listen to your concerns and help you develop a plan that gives you peace of mind while achieving all of the goals you have for your family. Contact McDonald Law Firm today at (443) 741-1088 for a no obligation consultation.

DISCLAIMER: THE INFORMATION POSTED ON THIS BLOG IS INTENDED FOR EDUCATIONAL PURPOSES ONLY AND IS NOT INTENDED TO CONVEY LEGAL ADVICE.