Creating an estate plan that functions as intended, and that accomplishes all of your goals, requires you to consider a number of important factors, including the manner in which your estate assets are held, or titled. If you are married, you most likely own some assets jointly with your spouse. Even if you are not married, you may own property, or other assets, jointly with someone else such as a partner, adult child, parent, or sibling. Because it is important to understand joint ownership, the St. Louis estate planning attorneys at Amen, Gantner & Capriano, Your Estate Matters, LLC explain what assets can be held jointly, the advantages and disadvantages of joint ownership, and the types of joint ownership.
What Assets Can Be Jointly Held?
Almost any type of asset can be jointly held, including real property, financial accounts, and securities; however, there may be different characteristics for different types of jointly held assets. For example, when a bank account is jointly owned, either owner is typically able to deposit or withdraw funds. Conversely, in order to transfer securities that are jointly owned all owners must sign off on the transfer.
What Are the Types of Joint Ownership in Missouri?
All joint ownership is not created equal! Failing to understand which type you have created could have disastrous results for your estate plan. In the State of Missouri, the following types of joint ownership are available:
- Joint Tenancy – when property is held as joint tenants, upon the death of one co-owner, his/her interest in the property automatically transfers to the remaining co-owner without the need for the property to pass through probate. Probate avoidance is the number one advantage to holding property as joint tenants. Keep in mind, however, that there are also disadvantages such as:
- All owners must sign off if you wish to sell or encumber the property
- Special language must be used to transfer the property into a trust if you wish to retain its joint tenancy
- Creditors of one owner may be able to attach a claim to the entire property, not just the debtor’s interest.
- Tenancy in Common – two or more owners who each own an undivided share in the property. An owner can sell or encumber his/her interest without the consent of other owners. In addition, if one owner dies, the deceased’s interest in the property becomes part of his/her estate and is distributed according to the decedent’s Will or the state intestate succession laws. The primary advantage to holding property this way is that creditors of one owner cannot reach the other owner’s interest in the property. The primary disadvantage is the uncertainty that occurs upon the death of one owner.
- Tenants by the Entirety – only married couples can create a tenancy by the entirety. This form of joint ownership is similar to joint tenancy in that neither spouse can sell his/her interest in the property without the consent of the other spouse. One of the main advantages of tenancy by the entireties is that the property held in this form cannot be subject to either spouse’s individual debts (but it can be subject to joint debts). The disadvantages are much the same as those for joint tenancy.
How Is Joint Ownership Created?
State law governs joint ownership, meaning the rules for creation of joint ownership as well as the types of joint ownership available will differ somewhat from one state to the next. In some states, for example, real property owned by a married couple is presumed to be held with rights of survivorship while in other states you must make it clear on the deed that the property is to be held as such. In Missouri, if the co-owners are not husband and wife, tenancy in common is presumed and the deed, or other document of conveyance, must specifically note that the property will be held not as tenants in common but as joint tenants with rights of survivorship (JTWRS) if that is the intention. For personal property, including the initials “JTWRS” on the ownership documents or account is usually sufficient to create a joint tenancy.
Contact St. Louis Estate Planning Attorneys
If you have additional questions or concerns about which type of joint ownership is best for your estate plan, contact the experienced St. Louis estate planning attorneys at Amen, Gantner & Capriano, Your Estate Matters, LLC by calling (314) 966-8077 to schedule an appointment.