Little Known Pitfalls of Co-owning Property
People often set up bank accounts or real estate so that they own it jointly with a spouse or other family member. The appeal of joint tenancy is that when one owner dies, the other will automatically inherit the property without it having to go through probate. This may sound like a good idea because it can be done at the bank when opening an account or with the title company when buying real estate. But, beware – joint ownership can cause unintended consequences and complications.
- The other owner’s debts become your problem. Any debt or obligation incurred by the other owner could affect you. More specifically, if the joint owner files bankruptcy, has a tax lien, or has a judgment against him or her, you might find yourself with a new co-owner – your old co-owner’s creditors! For example, if you add your boyfriend to the deed on your home, and he has debt you don’t know about, your property could be seized to collect his debt. Although “your” equity of the property won’t necessarily be taken, that’s little relief when the house you live in is put up on the auction block!
- Your property could end up belonging to someone you don’t intend. Some of the most difficult situations come from blended families. If you own your property jointly with your spouse and you die, your spouse gets the property. On the surface, that may seem like what you intended, but what if your surviving spouse remarries? Your home could become shared between your spouse and his or her second spouse. Think about it. This gets especially complicated if there are kids involved. Your property could conceivably end up going to kids of the second marriage, rather than to your own.
- You could accidentally disinherit family members. If you designate someone as a joint owner and you die, you can’t control what she does with your property after your death. Perhaps you and an adult child co-owned a business. You may state in your will that the business should be equally shared with your spouse or divided between all of your kids; however, ownership goes to the surviving owner – regardless of what you put in your will.
- You could have difficulty selling or refinancing your home. All joint owners must sign off on a property sale. Depending on whether the other joint owners agree, you could end up at a standstill from the sales perspective. That is unless you’re willing to take the joint owner to court to force a sale of the property. No one wants to sue their family members, not to mention the cost of the lawsuit.
- And what if your co-owner somehow becomes incapacitated, through accident or illness? In that case, you may have to petition a court to appoint a guardian to represent the co-owner’s interest in the sale. While you and your co-owner always worked together, an appointed guardian may see his or her responsibility as protecting the other owner’s interest – which might mean going against you.
- You might trigger unnecessary capital gains taxes. When you sell a home for more than you paid for it, you usually pay capital gains taxes – based on the increase in value. Therefore, if you make an adult child a co-owner of your property, and you sell the property, you’re both responsible for the taxes. Your adult child may not be able to afford a tax bill based on decades of appreciation. On the other hand, heirs only pay capital gains taxes based on the increase in value from when they inherited the asset to when they sell it, not from the day you first acquired it. So often, while people worry about estate taxes, in this case – inheriting a property (rather than jointly owning it) could save your heirs a fortune in income tax. And with today’s generous $11.18 million estate tax exemption, most of us don’t have to worry about the estate tax (but the income tax and capital gains tax hits almost everyone). You could cause your unmarried partner to have to pay a gift tax.
- If you are unmarried partners, you may be unintentionally changing the legal nature of your relationship under Washington law. Under Washington law, there are some unmarried relationships that can be characterized as a “committed intimate relationship” (CIR) depending on the specific facts of the case. If you have intentionally decided not to get married and you share title to real property with your significant other, the nature of your relationship is likely to be scrutinized under Washington law if your relationship ends. If the court finds that you were in a CIR, certain rights and responsibilities attach (much like they do if you marry). CIR claims are complex questions of fact that are not easily resolved and usually lead to large attorney bills. You don’t want to enter into one on accident.
- If you buy property and place it in joint tenancy with an unmarried partner, the IRS will consider that to be a taxable gift to your partner. Federal law allows unlimited gifts between married people, but not between unmarried people. If you transfer your property to your unmarried partner, it will trigger needless paperwork and taxes. In Washington, if you buy your unmarried partner out of his or her share of the property, the selling party typically must pay an excise tax which most people find pretty frustrating on the heels of a breakup.
So what can you do? These decisions are too important and complex to be left to chance. A good lawyer will help you decide the best way to manage your property to meet your needs and goals. We understand not only the legal issues but the complex layers of relationships involved in estate planning. We’ll listen to your concerns and help you develop a plan that gives you peace of mind while achieving all of your goals you have for your family. Contact us today for a consultation.