Although, joint tenancy will avoid probate, holding property as joint tenants may also have adverse and unexpected consequences. First, a little primer on basis to understand what is meant when we speak about your basis in property.

Generally, your basis in property is what you paid for it when you acquired the property. For purposes of this discussion and to keep things simple, we will not address the adjusted basis which is determined when you consider gain or loss such as capital improvements or depreciation, respectively, to the property.

If you paid $100,000.00 for real property, your basis in that property would be $100,000.00. If you later sold it for $250,000.00, you would realize a gain of $150,000 that, ignoring any exclusions or exemptions that may be available, would be subject to taxation. Similarly, If someone gifted you that same property during their lifetime, your basis in the property would be the same as the person gifting it to you. If they paid $100,000.00 for the property and gave it to you when it’s fair market value was $250,000.00, your basis would be $100,000.00 and if you sold it for $250,000.00, you would have a taxable gain of $150,000.00. Again, for demonstration purposes we are not taking into account any state or federal exemptions or exclusions available such as those under IRC section 121.

Many couples in California, married or not, hold title of their real property as joint tenants. I find this is mainly the result of not consulting a legal professional when purchasing the property. The property sales paperwork they receive from escrow has a question which asks how the buyers would like their property to vest or how they would like to take title. And not completely understanding the question or repercussions, they often ask and take the advice of someone from the escrow company, title company or their real estate agent, many of whom are not familiar with issues that may arise by holding title in such a manner. Other times, for those currently owning real property, the manner of title is changed because the owner has heard horror stories about the probate process and have been informed that holding property as joint tenants will avoid probate. Which it will, barring any other unusual issues.

Joint tenancy with the right of survivorship is the full proper name, however many jurisdictions allow the forgoing of the phrase “with right of survivorship” in the vesting document. Joint tenants own an undivided equal interest in the property and when one of the joint tenants dies, their interest in that property will pass to the surviving joint tenant or joint tenants, outside of probate by “operation of law.” Typically, the only document necessary to reflect the remaining owners of the property, is an Affidavit of Death of Joint Tenant which is filed with the County Recorder’s Office. This will show the chain of title and indicate the remaining joint tenants as owners of the property. While owning property as joint tenants or adding a joint tenant to your deed, will avoid probate, it may have unintended consequences.

One such consequence is that a joint tenant cannot leave their interest in the jointly held property by Will or Trust to anyone such as their heirs. This is because your interest in the property will pass to the remaining joint tenants. This is of particular importance in blended family situations. Let’s say Husband and Wife meet, both had previous marriages and both have 2 children from those previous marriages. Wife and her two children move into Husband’s home and and Husband adds Wife to the title of that home as a joint tenant. Some years later, Husband dies and the property automatically passes to Wife. Husband has a Will that states his children shall receive all of his estate in equal shares. Husband wanted his children to receive the home, or at least his interest in it, however, it now, in its entirety, belongs to Wife, who, in her Will has provided that her 2 children receive all of her assets. Husband probably didn’t expect this result and to provide for his own 2 children at his death.

I was out to dinner the other night and overheard a brother and sister discussing their father and his new young bride and her pregnancy. The conversation started in muted whispers however, it didn’t take long until their voices got louder as the discussion went on. Soon the entire restaurant was paying attention to these siblings who seemed to be quite put out by their soon to be born half brother or sister, and the other two children their stepmother brought into the family. All the while oblivious to the audience they had around them. The comment that stuck in my mind most was when the sister, almost screamed “That woman and her three kids are cutting into our piece of the pie.”

Evidently, these siblings were not only counting on and expecting a certain inheritance from their father, but they were depending on it. And that reminded me of an article posted in the Wall Street Journal one or two years ago written by Anne Tergesen that addresses issues when baby boomers are counting on an inheritance they may be in for quite a shock.

Although the article is a couple of years old, it is still relevant in today’s economy. People are living longer, asset values have decreased and often it is the children that are the ones supporting their parents. On the other hand, the article cites The Center on Wealth and Philanthropy at Boston College where the Center estimated that baby boomers and their children could, over the next 4 decades, inherit $27 trillion dollars. However, that money is going from the wealthiest families to their wealthy children.

I recently read two articles regarding the rumors about Amy Winehouse updating her Will to ensure that her ex-husband Blake Fielder-Civil would not inherit any of her estate. One article was in Forbes and the other in Elder Law Answers. Was the troubled singer really that organized? It turns out she wasn’t. Winehouse died intestate, in other words without having executed a will.

Like many other celebrities, Winehouse procrastinated with her estate planning, leaving it up to the courts to distribute her millions.

The moral of the story: It’s never too early to plan your estate. If you have accumulated some assets (it doesn’t have to be Winehouse’s millions) or if you have young children that will need a guardian, then it is time to start thinking about an estate plan. Planning your estate with a will or trust is the best way to ensure your estate is distributed in the manner and to whom you want.

A Will, a Trust, Powers of Attorney, Advance Health Care Directives, HIPAA Authorizations, Personal Property Assignments and any thing else attendant to your estate plan are legal documents. We don’t advocate drafting your own estate planning documents, but if you do, make sure your intent is clear. The smallest mistake can completely disrupt your plans, goals and desires with respect to your estate assets.

For example, a man, Duke, who passed away in 2007 had handwritten (holographic) his own Will in 1984 which purportedly provided that his $5 million estate was to be distributed to his wife and then 1/2 to the City of Hope and the remaining 1/2 to the Jewish National Fund. The Will disinherited anyone not mentioned in the document. Duke had two surviving heirs, his nephews, Robert and Seymour Radin who were estranged from Duke.

The language in the Will specifically provided that if Duke and his wife died “at the same moment”, then the estate was to be equally divided to the above named charities. Duke’s wife died in 2002.

An article posted at Coloradoan.com written by James L. Watts, outlines many reasons why it is not just the wealthy that benefit from an estate plan. Excluding possible federal estate tax exposure, Mr. Watts offers motivation in the article to those whose wealth is well under the current exemption amount to prepare an estate plan.

Additionally, in California, a comprehensive estate plan can provide for incapacity of the individual, liquidity of assets at death and avoidance of probate.

For the next two years, 2011 and 2012, married couples have a unique estate planning opportunity available to them that has never existed. The fact that this opportunity may not exist at the beginning of 2013, makes planning decisions revolving around this opportunity even more complex. For the next two years, a spouse can inherit their deceased spouse’s estate and gift tax exemptions to the extent those exemptions are unused. This is called portability of the deceased spouse’s exemption.

Traditionally, spouses would include exemption planning in their estate plan to preserve the first-to-die unified credit by creating a separate exemption trust funded with assets valued up to the exemption amount for the year that their spouse passed away.

For 2011 and 2012, that type of planning is not necessary as portability allows the living spouse to inherit the deceased spouse’s exemption. This will make estate plans more simplified for the two years portability is in existence, but it is not without certain concerns.

People usually do not grasp the unintended consequences of who their property will be distributed to upon their death without an estate plan of some sort.

I had a client who had dated a man for 30 years before finally giving in to his multiple proposals. Unfortunately, the man passed away within the year of their marriage. The man had an estranged daughter from a previous relationship and had not had contact with her for decades. The man owned multiple assets, including the home he lived in with my client, but because the couple was recently married, all the property was the decedent’s separate property and my client did not have a community property interest in any his assets.

The man did not have an estate plan. Under the laws of intestate succession, all of his property would pass to his wife and his estranged daughter equally. Additionally, a probate would be necessary to effectuate the transfer of the assets which included multiple bank accounts and real properties to the wife and estranged daughter.

I was standing in line at the market the other day and I noticed a storyline on the first page of a weekly fan magazine that stated “Elizabeth Taylor’s Estate Begins Probate.” I was puzzled, and always am, when people of means, who are presumably surrounded by business people and lawyers, don’t have an estate plan in effect which would, at the very least, avoid probate.

So, I did a little research. It turns out that the estate is not being probated. Ms. Taylor had a revocable trust at the time of her death. However, the attorneys for the trust opted for a court proceeding which is commonly referred to as a Creditor’s Claim process for trust administrations.

The probate court has jurisdiction over trust matters. The Creditors Claim process brought in a trust administration is voluntarily filed in the probate court. The Creditors Claim process in a probate is mandatory.

There is an interesting article in the Wall Street Journal discussing which taxation system to choose for those taxpayers who passed away in 2010. The choice is between the estate tax system or the modified carry-over basis rules initially in place in 2010 when the estate tax was phased out.

Previous law gradually reduced federal estate tax over the years and eliminated it altogether for decedent’s dying in 2010 subject to carry-over basis rules which could result in income/capital gains taxation. In 2011, the estate tax was to be applied to assets in a decedent’s estate over $1 million at a rate of 55%.

New law, the 2010 Tax Relief Act increases the exemption amount to $5 million for 2011 and 2012 and is retroactive to January 1, 2010. Representatives for estates of decedent’s dying in 2010 can choose between the estate tax scheme or no estate tax subject to the modified carry-over basis laws.

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