A piece I wrote a little while ago described the 3 tenancies of property ownership: Tenants in Common, Joint Tenancy with Right of Survivorship, and Tenancy by the Entirety. Occasionally, individuals of modest means will ask me about adding a non-spouse family member as a joint tenant to a bank account or to the title of their home. Typically, the individual is elderly, recognizing his or her mortality, or failing health. I applaud their queries because ensuring your financial affairs and making sure that funds are available to address illness or incapacity are in order as the golden years approach is critical.
Yet, I caution against using joint tenancy with non-spouses* for the following reasons:
- Creditors. While the original owner’s credit may be stellar, the son, daughter, or niece may have outstanding debts. Joint tenancy allows creditors to attach liens to the property, thus defeating the purpose of having one’s financial affairs in order or being able to at least financially provide for one’s self in the event of illness or infirmity.
- Potential Probate. Just because property is in joint tenancy, at least in Illinois, doesn’t mean that probate is automatically avoided. If a gift wasn’t the rationale but a matter of convenience, as mentioned above was the premise and a will is in place, then per Illinois law, the property could have to pass through probate.
- Taxes. Unless the joint tenancy is between spouses, estate gift taxes may be triggered. Upon one tenant’s death, the estate tax is determined by the amount of contribution by the surviving tenant. If the surviving non-spouse tenant didn’t contribute to paying for the property, then the entire amount of the property is included in the decedent’s gross estate for estate tax purposes.
So, we should think again about entering into joint tenancy agreements with non-spouse members, especially if any of the 3 reasons above may loom overhead.
*If the surviving tenant is a spouse, then only half of the value of the property is included in the deceased spouse’s estate, reducing potential estate taxes by 50%.
