12 Feb The Family Post 2
The most interesting customer of the day today was a mother and her adult daughter who came in and asked for Probate assistance. We’ll call them Mother and Daughter. Mother’s mother (Grandmother) and Mother’s grandmother (Great-Grandmother) owned a home together as “joint tenants”. Their situation raised a number of thorny but instructive issues on precisely how not to plan one’s estate.
The players here get a little complicated, so let me go through who they are again:
– Daughter – accompanied her mother to our office.
– Mother – came into our office seeking assistance to transfer title to the house she lived in. According to her, she was the one who was supposed to inherit the property we’re going to talk about in this post.
– Grandmother – Mother’s mother; deceased. She died before her own mother. She co-owned the subject real estate with her mother.
– Great Grandmother – Mother’s grandmother; also deceased. She and Grandmother co-owned the home together.
A “joint tenancy” is a form of property ownership where: (1) the joint tenants own equal shares of a property, and (2) when one of the joint tenants dies, the property transfers all to the other joint tenant without any sort of court proceeding. This “right of survivorship” is a main feature of joint tenancy that is very appealing-sounding because it avoids that scary sound court process called “probate” when one of the joint tenants dies. However, the joint tenancy’s lack of flexibility comes with some serious potential pitfalls. It is also responsible for causing some entirely preventable tax complications. I’ll discuss these things in a future post.
Grandmother and Great-Grandmother’s expectation was that Great-Grandmother would die first. This expectation assumed that Grandmother would inherit the rest of the home as the surviving joint tenant after Great-Grandmother’s death. There would have been no need for costly probate court administration if this expectation had played out the way they had planned. Then, at Grandmother’s death, the property would have passed to Mother, which was everyone’s intent.
But, unexpectedly, Grandmother died first at 60 years old, and Great-Grandmother survived her. Then Great-Grandmother died without a will, trust, or any such planning instrument.
Unfortunately, the home will not pass the way they were hoping. Instead of passing to Mother, Grandmother’s only daughter, the house will pass instead to all of Great-Grandmother’s heirs. Since Great-Grandmother died as the only owner of the home, and since she died without a will, the property will pass to eleven of Great-Grandmother’s children and grandchildren through the probate process.
Not exactly what the family was planning, eh? What’s worse than this is that Daughter said that six of those grandkids haven’t been part of the family for over 40 years.