Long Island Elder Law & Estate Planning

If you add a joint tenant to the title or deed of your property, this person would become a co-owner. Joint tenancy with right of survivorship allows the surviving joint tenant to inherit the portion of the property that was owned by a deceased joint tenant. This transfer would take place outside of the legal process of probate.

Probate provides some useful protections, and the state of New York delivers a streamlined probate process. However, there is no getting around the fact that it is going to take a significant amount of time. Simple cases will take a number of months, and complicated cases can take longer.

There are also expenses that accumulate during the probate process. These costs are going to reduce the amount that is left to distribute to the heirs to the estate.

Joint tenancy can be useful for those who would like to arrange for the transfer of property outside of the process of probate.

There is also the matter of Medicaid recovery. Many seniors use Medicaid to pay for long-term care because Medicare won’t pay for it. Though your home is not counted by Medicaid when you first apply, technically the program can seek recovery after you die by attaching your home.

If you were to make your child a joint tenant, at minimum he or she would be able to retain his or her portion of the home. At best, the transfer of your portion to your child may take place before the recovery people are even aware of your death.

These are some of the reasons why joint tenancy is sometimes used by those who are looking for estate planning solutions. However, there is a major negative to take into consideration as well.

When you plan your estate you are generally going to be arranging for asset transfers that will take place after you die. If you wanted to give a gift while you were still living you could. The reason why you are arranging for the transfer after you die is because you want to keep the property while you are living.

Joint tenancy is going to involve an immediate divestiture. Once you add your child as a joint tenant to the title of property that you own, he or she owns half of the property, plain and simple.

You cannot sell it without the approval of the joint tenant, and he or she would be entitled to his or her share of the proceeds if you did sell the property.

In addition to this, your child’s financial problems become your problems. Creditors or other types of litigants could seek to attach the portion of the property held in joint tenancy that was owned by your child.

 

 

 

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About Eghrari Wealth Training Law Firm

Mark S. Eghrari is an attorney in private practice in Smithtown, New York. He has been in practice since 1988. Mark S. Eghrari provides extensive estate and tax planning services to individuals and businesses. Mr. Eghrari’s primary focus is helping clients avoid probate, minimize or eliminate Federal and State Estate taxes and protect their assets from the high cost of nursing care, if they become ill.