Myth #4- I don’t need a Will, I’ll just put everything in joint names!

November 10, 2017
Lindsay M. Schoeneberger

If myths 1 through 3 haven’t convinced you that you need a Will, perhaps this one will.  At more than one networking event or social gathering, I’ve been cornered by someone who thinks they have found a way to “game the system.”  Often times, this master plan includes putting everything in joint names with their spouse, parents, or children in order to avoid inheritance tax and probate.  Unfortunately, this “solution” doesn’t accomplish the tax goals, and creates a lot of pitfalls that might not make avoiding probate worth it.

For more on inheritance tax and probate, stay tuned for myth 5 and 6.  If the solution is to put everything in joint names with your spouse, that will actually avoid probate and due to the 0% inheritance tax rate for a spouse, there is no inheritance tax due either.  But what happens when the surviving spouse dies or if you die in a joint accident?  This solution, if it works, will only work once.  I don’t know about you, but that is not good enough for me to consider this a viable solution.

Putting assets in joint names with your parents or children can create a Pandora’s box of problems.  Once you put an asset in joint names with someone else, you lose complete control over the asset.  You own your house free and clear.  You decide to put it in joint names with your son Billy.  When you put it in joint names, you tell Billy this is only for estate planning purposes and nothing else.  Billy may or may not decide to follow that.  The law doesn’t care why you put it in joint names, but now that you did, Billy is part owner of your house.  He has the same control over that you do.  Even if Billy agrees that the house in in joint names for estate planning purposes only, it opens the house up to Billy’s creditors.  If Billy runs up substantial debts, your house that you own free and clear can be considered an available resource to pay Billy’s debts now that you put it in joint names.

Still on the fence about whether putting assets in joint names without consulting an attorney is a good idea?  Let’s say you transfer your house into joint names with Billy and two years later you need to qualify for Medicaid benefits.  Your transfer of the house into joint names would be considered a transfer not for fair market value within the five year look back period.  This creates a penalty period during which you are ineligible for Medicaid benefits.  This applies to other assets as well.  If you are considering transfer assets for whatever reason and are even remotely close to needed to plan for Medicaid assistance, it is a good idea to consult an attorney to ensure you are not inadvertently making yourself ineligible for services.

Lindsay Schoeneberger is an attorney at Russell, Krafft and Gruber, LLP in Lancaster, Pennsylvania. She received her law degree from Widener University School of Law and practices in a variety of areas, including Estate Planning.