If you and your siblings have inherited property from a family member, a common question you may have is “What happens when one of us dies?”
Many of my estate planning clients who co-own property with other family members have this question when we are considering what to do with the property as part of their estate plan. Before you spend too much time wondering about the possibilities, the most important first step you need to take is to examine the deed to the property. You need to understand “how” the property is owned so you know what happens when an owner dies.
The ownership of the property normally breaks down into two different camps, a Joint Tenancy with a Right of Survivorship or a Tenancy-In-Common. These are legal descriptions for the type of ownership and while you may think you’ve got a good handle on what each of them means, it’s important that you understand each of them and the implications for the future ownership of the property.
Joint Tenancy with Right of Survivorship
If you and your family members hold the property by Joint Tenancy with Right of Survivorship, that means that when one of the owners dies, their share in the property automatically goes to the other owners of the property.
In this type of ownership, your estate plan should be focused on what happens if you are the last of the owners to die. In that case, the property will be passed along according to the terms of your estate plan. However, if you die before one of the other co-owners, then your share automatically goes to them and is not distributed by your estate plan.
This can be a bit of a shock to people who assume that the family cabin that has been in the family for years may not actually pass on to their children if it’s owned in this manner. Many times, it has been passed down from the older generation in this manner and they did not consider the effect that this ownership structure would have on the property’s future.
Tenancy-In-Common
This is the more common ownership structure that my clients will set up for family properties as it allows for the family members to control their share in the property upon their death. If property is owned as tenants-in-common, then each family member has a specific share of the property and can choose how to distribute that share upon their death.
In these situations, it’s important that each of the family members who owns the property has an estate plan, otherwise, if an owner dies, that person’s share may have to go through the local probate court and if the owner had significant debts, the interest in the property may become embroiled in the collection of those debts by the creditors.
This type of structure also allows for you to have “unequal” shares of the property, i.e. one sibling owns 40%, and the other two siblings each own 30%. There can be a variety of reasons why you may want to consider an unequal ownership structure of the property and by using a tenancy-in-common you can achieve those goals.
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The most common discussion I have with clients happens when they don’t realize what the ownership structure is on the property and they often find out it’s not what they thought it was. Finding out the ownership structure is often as simple as pulling a copy of the current deed from the property recorder’s office. But once you have that information, it’s important to work with professionals so that you understand the legal effect of the ownership structure and can plan accordingly when creating your estate plan.
Do You Need an Estate Plan?
If you need an estate plan or maybe just need to update one you had prepared before, let's schedule a Legal Strategy Session online or by calling my Edina, Minnesota office at (612) 294-6982 or my New York City office at (646) 847-3560. My office will be happy to find a convenient time for us to have a phone call to review the best options and next steps for you to work with an estate planning attorney to get your plan prepared and implemented.
