Jewish World Review June 11, 2008 / 8 Sivan 5768

Review property rights before creating will

By Jan L. Warner & Jan Collins

http://www.JewishWorldReview.com | Continued from last week: When their father died and their stepmother claimed the vast majority of his estate after a short marriage — despite the terms of Dad's will — disappointed children by his first marriage learned too late that the manner in which real estate is titled can create an irrevocable result that can't be changed by a will.

Unfortunately, most folks pay too little attention to the way that real estate and bank and brokerage accounts are titled — until it's too late. Usually, we ask no questions and sign what is placed in front of us without understanding the long-term effect of the transaction. But not asking questions of the lawyer or account representative often leads to irreversible, unintended results.

Since a joint or co-tenancy can lead to different results depending on your state of residence, it is essential that you learn the ultimate disposition of the asset at death. For example, while two or more people who own the same asset may be called co-tenants or joint tenants, in some states the death of one means that each owns an undivided half interest that can pass by will, while in other states, the survivor may take it all. The manner in which real estate is titled also affects the ability of each co-owner to sell his or her interest to others during life, to pass on his or her interest in the property by will, or to terminate the joint ownership of the asset.

Regardless of the ultimate effect of the co-tenancy, however, each co-owner has certain rights and obligations to the other co-owner regarding the property, such as 1) the unrestricted right to go upon and to use the property; 2) the right to an accounting of the profits — such as rents — and the right to receive a pro-rata share of the profits based on percentage of ownership; and 3) the obligation to contribute pro-rata for the cost of maintaining the property — things like real estate taxes, mortgages and assessments regarding the property.

On the other hand, generally speaking, without an agreement, if one co-owner improves the property, there is no obligation on the other owner to share in the cost of improvement even if, as a co-owner, he or she benefits from increased profits. And very complicated situations can occur when one co-owner encumbers his or her share by taking out a mortgage on that share.

When the co-owners are tenants in common — meaning neither has a right of survivorship and will not receive the property automatically at the death of the first co-owner — each owner's share will be inherited by that owner's family if he or she dies without a will, or by his or her named beneficiaries if he or she dies with a will. Should either tenant in common choose to end the joint ownership relationship, he or she may bring what is called a "partition" proceeding in court by which, if possible, the property is divided into separate pieces of approximately equal value or is sold, with the proceeds being divided according to ownership interest.

When the property is owned jointly with right of survivorship (JTWROS), if either owner dies, his or her ownership interest automatically passes to the surviving owner by law and avoids the probate estate — meaning that the interest of the first to die can't be inherited or passed under a will. To own property JTWROS, the owners need not be husband and wife, but they do own the property equally.

Many times, when a husband and wife purchase a piece of property, the closing attorney — often without asking — will prepare a JTWROS deed. This is how the condominium purchased by the deceased father passed to his second wife after a short marriage, even though it appears that, by the terms of his will, he wanted her to receive only half of the property he purchased.

Taking the NextStep: The form of ownership between spouses, parents and children, and partners is most important and should be understood by all before the transaction is completed. Banks and brokerage accounts are established similarly, and the JTWROS on the account may not be the owner's intent but will direct where the account goes at the first death. Be sure to ask questions and understand fully what you are signing.