Know How to Hold it - Pros and Cons of Certain Types of Property Ownership
by: Legal Hotline for Older Iowans
The manner in which you own your property can have important consequences. The common forms of ownership are sole ownership, joint tenancy with right of survivorship and tenancy in common. Each form of ownership has its pros and cons. The way you hold property may affect who has access to your property during your life, who gets the property at your death, and whether you will need to have the property go through probate. The following are some general principles that may help you think about and decide how you want to own your property.
As the sole owner of property, you alone control what happens to your property. You can sell the property. You can will it to someone. A disadvantage to sole ownership, is that your heirs will have to probate your estate to transfer title to property such as real estate, bank accounts and stocks. In addition, if you are unable to manage your property, no one else can access it to help pay your bills.
Some people own property with another person as joint tenants with right of survivorship. Under this form of ownership, each owner has an equal right to control and possess the property. Upon the death of one owner, the property interest of the person who died automatically transfers to the other owner or owners. Common examples of the types of property owned as joint tenants are a home, bank accounts or car. Most married home owners own their home as joint tenants with right of survivorship. Upon the death of one spouse, the other becomes the sole owner of that property.
A benefit of owning property as joint tenants with right of survivorship is that you can avoid probate of your estate because ownership of the assets automatically transfers to the survivor at the death of one of the joint tenants. This may save some legal costs. Joint tenancy allows quick
access to a residence and other assets after the death of one of the joint tenants. Joint tenancy in a bank account also allows someone to have access to the account to help you pay bills if you are unable to pay them.
There are risks in joint ownership. Each owner has an equal right to the property. Joint tenants need to agree on how to manage the property. In some instances, a joint tenant could legally take control of the asset and the other owners may have difficulty retrieving their share of the property. For example, if a relative is named as a joint tenant of your bank account, that relative could withdraw funds without your permission. Property owned in joint tenancy is also subject to seizure by the creditors of each of the owners. If your child's name is on your bank account as a joint tenant with right of survivorship, your child's creditors can have access to the funds to satisfy the child's debts. Joint ownership can also cause liability problems. If you are a joint owner of an automobile, and the other owner causes an accident, as an owner you also face liability for any damages. Another potential disadvantage is that the owner cannot will his or her share to anyone.
Another possibility of ownership is to own property as tenants in common. This means there are two or more owners and each owns an undivided share of the property. There is no survivorship among tenants in common. Upon the death of an owner, that owner's share will pass to his or her heirs. A benefit to this type of ownership is that you can will your property to whomever you want. A disadvantage is that probate of an estate is still needed to change the title to reflect the new owner. Also, owners face the same liability and control issues as joint tenants.
An alternative to owning bank accounts or CD's as joint tenants with right of survivorship or as tenants in common is to create a payable on death (POD) account. A POD account is created at the bank by naming beneficiaries to receive the remaining balance of the account at your death.
It takes approximately six months for beneficiaries to receive the funds. A POD account allows a person to keep complete control of a bank account while living, but allows the transfer of the account proceeds at death without probate.
Another way to permit a person to have access to your bank accounts to help you pay your bills is a durable power of attorney for financial matters. This document will permit the named person to have access to your accounts, or other financial matters, without adding his or her name to the account. This avoids problems with you being liable for the other person's debts and may allow you to maintain more control of the account.
If you own substantial assets there may be federal estate and gift tax consequences, and joint tenant ownership may not be your best option for owning property. There are also additional issues that may affect the way you own your property that are not addressed here. Because there are so many consequences based on how you own your property, please consult your attorney or call Iowa Legal Aid. I you are age 60 or over, call the Legal Hotline for Older Iowans for further advice.
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