Ownership Form Overrides The Will
by Neil S. Siskind, Esq.
I received a call last week from a 35 year old man whose father passed away a year ago. The deceased father allegedly had a net worth of ten million dollars. To date, however, the son has received nothing. The father left no Will. The Father's wife (the stepmother), who lives in the same city as the man who contacted me, recently purchased a new jaguar and a ski condo and owns numerous pieces of real estate. What went wrong?
You may say to yourself, as the child of the deceased, this man is entitled to receive some assets or cash. But if there is no Will, he may not be entitled to anything. If you have also read my article, Where There’s No Will, It’s Their Way, you will note my advice that if there is no Will, the state ensures that children of the deceased receive assets of the estate. But what about when assets are co-owned by two (or more) people with survivorship rights?
If property is owned by two people with each having the right of survivorship, then state law may dictate that the asset passes to the survivor automatically upon death of the other. This right supersedes any terms of a Will or Trust. Thus, the particular asset does not become part of the “estate”. Whether or not there is a Will is of no consequence. State law on this particular issue prevails. In the case of the person who called for my advice, all real estate was owned by his father and his father’s wife, each having rights of survivorship pursuant to state law. Most of the deceased father's wealth was tied up in real estate. So she got it all. Even if there was a Will, this would have been the result.
In order to ensure that a jointly owned property passes to you outside of Probate and automatically upon the death of the person whom you own the property with, seek proper legal counsel to ensure the proper form of ownership under your state’s laws. It must be owned correctly to ensure immediate conveyance on death. If you plan to be the beneficiary of an estate, ensure that the person who owns the property understands the ramification of the ownership form so that you are not accidentally disinherited. This is especially important when dealing with an elderly relative who may have been confused, or duped, or just uninformed. Likewise, if you are the owner of property, you want to be sure not to inadvertently disinherit anyone by virtue of state law overriding your Will.
Regardless of the point of view, you want to own property in the manner that ensures the best protection from liability but also in the best manner to ensure that your ownership passes to the person you wish in the manner you wish upon your death.
Contact The Siskind Law Firm to plan your estate or prepare your Will or Trust today.
