Stautz Law

Tag: Right of Survivorship

  • Joint Tenancies Part III: Planning Considerations

    Video

    Transcript

    (Auto-Generated)

    Hi folks, it’s Andy Stautz with Stautz Law. We are back at part three of our three-part series on joint tenancies. So on the first one, we talked about what joint tenancies are. Our second video talked about survivorship affidavits and making sure you clear up joint tenancies when they’re over. This one, which I’m recording hard on the heels of the other ones, is about, like, What are we doing? What are some considerations you know? Should we plan using joint tenancies?  

    Joint Tenancies and Married Couples

    So I think the thing to remember is when a married couple buys property in Indiana there’s a presumption that they buy it jointly as tenants by the entirety. The type of joint tenancy. It’s reserved for married couples, but that’s like … that’s the default. That’s what you’re getting.  

    That works well for a lot of people because a lot of people’s estate plan is, you know, “all to my wife, then to my kids,” “all to my husband, then to my kids.” So. It’s a guess. It’s a good guess by the state of Indiana about how you want property with your spouse to work. It doesn’t mean it’s right in every situation.  

    Also, ordinary joint tenancies you can create with anyone. … You don’t have to be married.  

    Caution: Right of Survivorship Works Even If You Don’t Like It

    I think you need to be really careful when you’re using joint tenancies in planning, because they’re so slippery. I mean, I mean, sometimes they work when you don’t want them to. Because the right of survivorship applies to whoever survives.  

    You know? it’s not like, ohh, we’ll stop and think about it and decide. Right. And if you’ve got a right of survivorship, you don’t get to pass the property by will or, you know, in a trust, a testamentary trust, a pour-over will, none of that. So it it’s like. ZAP. It happens. It’s a shortcut against the rest of your estate plan.  

    Joint Tenancies as Cheap Estate Plan

    And if you want quick and dirty, you know, great. It does that. It’s cheap. You don’t need to do anything.  

    But if your circumstances change over time, it’s risky because it’s just kind of sitting out there.  

    How a right of survivorship goes wrong

    So I used an example in a previous video of someone who remarried and you know the new wife is …. is on the on the deed to the property and the old will says, oh, the property goes to my son. Well, that will has nothing to give anymore because when the husband dies, the new wife gets it, and the the son by the prior marriage doesn’t. And that’s almost certainly not what the man had in mind . . . you know, who knows, but . . . .  

    So they’re squirrelly. You know, they just…. If you’re not on top of how you own the property, you might not like what’s going to happen. So that’s probably the main reason.  

    Behavior Problems with Joint Tenants

    The other reason is you know you and your joint tenants have to get along. There aren’t separately descendible shares. That’s why you can’t give it away by will. Uh. So you might… you and your joint tenants’ estate plans have to line up to that extent. The only way to undo it is you know, you agree to sell or you go to a court and you have a partition action. It gets messy.  

    Conclusion: You Need a Complete Plan

    So tenancies by the entireties for married couples, usually good; joint tenants with other people, behaviorally risky. Either way you need estate planning strategy built around it, so don’t just assume that what you’ve got is going to is going to work.  

    Happy to talk about this topic or any other with you because I love solving estate planning puzzles, so I hope to work with you on your plan. Give me a call. We’ll talk more about it, but that’s all for today. Bye now. 

    Want to talk more?

    Book your initial planning meeting with Stautz Law and we’ll discuss your individual needs. No obligation.

    Book Now

  • Affidavits of Survivorship (Joint Tenancies Part II)

    Video

    Transcript

    (Auto-Generated)

    Introduction

    Hi folks, it’s Andy Stautz at Stautz Law and we are back with a follow up hard on the heels of our last discussion.  

    We just talked about joint tenancies–joint tenancies are where two or more people own a property all together: not in separate shares, but together.  

    And now I’m talking about survivorship affidavits 

    How Survivorship Works for Indiana Joint Tenancies

    As we discussed in our last video with the joint tenancy, if one of the joint tenants dies, the other owners step up; they get the property automatically. There’s no need for probate. There’s none of this other stuff.  

    How an affidavit of survivorship works

    The only thing you need is a little one page doc called an affidavit of survivorship, and I’ve got a sample copy. There are tons of sample copies on the Internet. Marion County, Indiana, if you’re doing Indiana estate planning, you know, we’ve got examples.  

    I’ll link one in the text version of the post. [As promised: here’s a link to Marion County’s sample affidavit of survivorship. Courtesy of Indianapolis government!]  

    It’s a one-pager and it basically says. You know, my name is such and such. I owned this property jointly with whomever. That person died. The property is mine now. Boom.

    Do you need to record the affidavit of survivorship?

    And that gets recorded. Just like a sale deed. Except it’s not a sale. It just it says “OK, County recorder, this property that was a joint tenant is now just mine or is now just we remaining owners”. 

    And you’ve got to do this. You’ve got to do this because what the affidavit of survivorship does is changes the title, the title of record. From both of you or all three, you know however many: from both of you to just one of you–to just your name.  

    And that lets you sell the property or dispose of it in your will or you know basically clears up the title and clarifies the fact that it used to be a joint tenancy, now it’s yours.  

    Why do I need to retitle joint property after death?

    If you don’t do that, bad things can happen. Or unexpected things. So I had a probate consultation with a man who . . . had a will that gave him a house. But the person who wrote that will owned the house in question as a joint tenant with right of survivorship. With someone else. So the will, you know… it wasn’t… the first of the joint tenants to die doesn’t get to give away the property. It goes to the survivor. So that really messed up the estate plan there.  

    And that’s why you should always make sure you know keep up on your property titling. So anyway, don’t be scared of the affidavit of survivorship. It’s an easy document to make. I can help you with that. You want to do it right. So there are DIY forms, but… I think you should call me.  

    Anyway, if you need help with that or any other estate planning, Andy Stautz at Stautz Law; you’re on my website so you know all of my contact information. I’m going to do one more video on this topic. And it’s going to be you know, pitfalls, traps, considerations, whether planning with joint tenancies is actually a good idea or not. So stay tuned. Bye for now. 

    Want to talk more?

    Book your initial planning meeting with Stautz Law and we’ll discuss your individual needs. No obligation.

    Book Now