My partner, Ray Cannon, created the chronicles of Dick and Jane to help clients understand some of the intricacies of estate planning and elder law. With thanks and appreciation for his sense of humor and legal skills, we bring you the 2019 life of Dick and Jane.
Jane has been happily married for the past couple of years. She continues to work as a money manager on Wall Street and Dick has started a part-time counseling practice while teaching part-time in one of the local community colleges.
Jane came in to see me and expressed an interest in buying a home with Dick and wanted to know how best to take title. I reminded her that her pre-nuptial agreement would allow her to take title in her own name.
I explained that there are a number of ways to take title in two names: there is tenant in common which means that in the event of the death of one spouse, that spouse's estate would take title to the deceased's fifty percent share; there is joint tenancy with right of survivorship in which case the deceased spouse's shares would pass to the surviving spouse; finally, there is a tenancy by the entirety which is available only to married couples. A tenancy by the entirety works just like a joint tenancy with right of survivorship but, there is no right of partition in the property. In other words, one spouse cannot transfer his share without the signature of the other spouse and if a claim is filed against one spouse, that spouse's share cannot be sold in order to satisfy the judgment. Jane asked what she should do.
Jane's prenuptial agreement indicated that if they took title jointly, then Dick's fifty percent ownership would be considered a gift by Jane to Dick. A gift, once made, cannot be undone. So I suggested that to be on the safe side, she take title in the name of a realty trust which allow her to name herself as primary beneficiary. If she wanted Dick to have the property if she died, she could so indicate. But, in the event of divorce, she would have control of the property and it would not be considered a marital asset. She could always change the tenancy at a later date. The realty trust has an added benefit of avoiding probate in the event of her premature death and ensuring a step-up in the tax basis of the property at her death.
I periodically have clients come in who are married couples, but for one reason or another have held their real property and bank accounts in separate names for their entire marriage. Now it is time to do estate planning, and I often suggest the use of a Revocable Living Trust. Revocable Livi...
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