HOME

 

About Us

Brochures

Articles

Contact Us

Estate Planning

Elder Law

Real Estate

Business Planning

       
Mistakes People Make - By Tim Barkley

They were very, very irate. Their son's ex-wife's divorce attorney had just garnished their bank account pursuant to a judgment for attorney's fees against their son.

Their son was a joint owner of the account, and had been, for twenty years. And now, they faced the thought of spending hundreds, probably thousands of dollars litigating against the attorney to protect their hard-earned retirement savings.

Legally, by making their son the joint owner of their account, they had made him the owner of the account. That's what the word "owner" in "joint owner" means.

Arguably, by making their son a joint owner of the account, they had made the account available to his creditors. The irony - their money paying the legal fees for "that woman" to divorce their son - was palpable in the room.

It was too late for them to heed the advice I generally give my clients: joint ownership between anyone but spouses is a very bad idea. As described above, it exposes the jointly held asset to the creditors of the joint owner.

Even assuming that your child is as pure as the driven snow and would never touch your assets, his creditors certainly will. Your daughter might be entirely trustworthy, but the trustee in her bankruptcy case - or her ex-husband - will take your cash, thank you.

Holding your assets jointly with a child, with the expectation that upon your death your child will make distribution of the jointly held assets to other children, has its own problems, even if his or her creditors never materialize.

One client did just that, holding his investment accounts jointly with his daughter. When he died, his daughter was jolted to find out that she must make taxable gifts to her two brothers to effectuate her father's intent.

The effectiveness of her own estate plan was reduced by the amount of the gifts, with the result that her estate, which would otherwise have probably been tax-free, will likely be taxed at her death.

Assets held jointly between husband and wife are presumed to be held as "tenants by the entirety" in Maryland. "Tenancy by the entireties," or "T by E" is a unique form of propertyholding, available only to married couples. It is more than just joint ownership.

The property is not owned by either party. It is owned by the marital unity - "the two shall be one flesh," embodied literally in the law. Thus, it is not subject to the claims of creditors of either of them. That means that a creditor of one spouse cannot reach an asset held as T by E. Only creditors of both spouses can reach T by E assets.

Joint ownership does not avoid estate taxes, contrary to popular belief. Joint ownership between spouses defers taxation under current law, but the assets will still be taxed at the death of the second spouse to die.

Assets jointly owned between nonspouses will be taxed in the estate of the first to die based on the contribution made to the purchase of the asset, or deposit to the account, by the deceased owner. When the second owner dies, the asset is fully taxable in his or her estate.

This means that, if you put your child's name on your bank account, it will be fully taxed in your estate for federal tax purposes, but will belong to your child. The tax money, if any tax is actually payable, must be paid from other assets in your estate, possibly distorting your estate plan in favor of the joint owner.

There are alternatives to joint ownership, which will be discussed in this writer's next column. In the meantime, review your signature cards and other asset titles to be sure that you have not exposed yourself to needless liability. Prepare to take action to protect yourself.
 

Offering Premier Services in Estate Planning and Administration, Elder Law, Real Estate and Business Planning.

The Tim Barkley Law Offices
P.O. Box 1136
Mount Airy, Maryland 21771
(301) 829-3778

tbarkley@barkleylaw.com