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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.
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Offering
Premier Services in Estate Planning and
Administration, Elder Law, Real Estate and Business
Planning. |
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The
Tim Barkley Law Offices
P.O. Box 1136
Mount Airy, Maryland 21771
(301) 829-3778
tbarkley@barkleylaw.com |
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