It is common practice for many couples to own assets jointly, with a right of survivorship. However, there are many misconceptions surrounding the benefits and pitfalls of this arrangement, and also whether to include children in this plan.
The largest benefit of joint tenancy is that upon the death of one of the joint owners, the surviving owners take over full ownership of the asset without any reference to the deceased’s persons’ estate.
The asset also does not go through any probate or administration process, meaning no probate fees are payable on the value of the asset, and it is not generally subject to any claims under wills variation legislation.
Access to assets on death can be critical and the probate process can take months. If assets are held in joint tenancy there is continuity of ownership and ease of accessing these assets (like bank accounts) after death.
Transfer of assets into joint ownership is an immediate disposition for tax purposes. Unless exemptions apply (for example a principal residence to a related person), there may be unexpected tax consequences on transfer.
If you are joint owners with someone, you are each equally responsible for the asset. This means it becomes subject to the same risks and liabilities that you each have personally. Bankruptcy, creditor judgments, and unstable family relationships are all risks which could attach to the assets of a joint owner.
Joint owners can sever their ownership meaning they immediately become the sole owner of a part of the asset. This can have dramatic effects including the possibility of a forced sale or a transfer to an unexpected third party.
Joint owners can also appear to act on the others’ behalf, including directing actions be taken on assets which the other owners may not wish or which are not easily reversible. Joint ownership on bank accounts allows full access to those accounts including draining it of funds. Joint owners of real property must make decisions unanimously.
Joint ownership can result in difficulties concerning capital gains, principle residence exemptions, and benefits available for first time home ownership. If you place your children on title as joint owners of real property, this may affect your children’s benefits and could result in tax liability.
Joint ownership is also a question of intention – if the intention is merely convenience rather than transfer on death as a gift, this may result in disputes amongst estate beneficiaries.
Joint ownership is a common tool but proper care and consideration is advised, even between spouses. If you have questions regarding estate planning in general or specific questions regarding the foregoing summary, we encourage you to contact our Wills & Estates Team.
Written by Michael Poznanski.