Estate planning and knowing property details

There’s a sort of societal expectation that you’re supposed to slow down as you get old, and I think you should fight against that.  Don’t let your grandkids get up and mow the law for you and get you a glass of water.  Get up and do it yourself. — James Pacala, M.D., Department of Family Medicine and Community Health,University of Minnesota.

          Do you know anyone who always knows the right thing to do and always does it?  I imagine most of us tend to think of our pastors, priests or rabbis when such a question is asked.  Yet most of them will tell you that they struggle just like the rest of us. 

It is a challenge to know the right thing and even more, sometimes, a challenge to get it done.  You know the television commercial – “a body at rest tends to stay at rest.”

As an example, let me list estate planning.  From my own experience meeting and talking to people, it seems that most know they should do some form of estate planning; a will or something.  However, that knowledge doesn’t always translate into actually completing the task.  It just hangs over our heads for years as something we know we should do.

When folks are told that they already have a Last Will and Testament that has been written for them by the State of Maryland, they cringe (as well they should) and feel even guiltier about not getting their own documents completed.  Some people don’t do it because they feel they have too many questions, so today we’re going to have a lesson on the most popular questions. The following is an important discussion that affects how your plan your Will:

Perhaps you don’t really understand the different ways that people can own property together.  By this, we are talking about property that has a title, known as “real property.”  For instance, what does it mean if your Deed says “joint tenancy with rights of survivorship” usually abbreviated as jt tnts w/ROS?  In that case, each owner owns 100% of the property and upon the death of one owner, the property passes to the joint owner.

It’s really important to remember that this Deed ownership trumps your will.  In other words, if you own your house joint tenancy with rights of survivorship with your ex-husband, but you execute a Will that says that the house should go to your first cousin, just know that it will go instead to your ex-husband.  This type of ownership is not transferable by Will. Additionally, there is only one Deed for land owned in this manner, and it lists each owner.

Okay, what does “Tenants in Common” mean?  Instead of owning the right to 100% of the property, each owner in this situation has a percentage of ownership.  For instance, let’s say you own property with your brother as Tenants in Common.  Each of you has a 50% ownership right.  In this case, there will be two Deeds; you and your brother will each have a Deed specifying your 50% ownership.  Even if there are multiple owners, there is a Deed for each owner.  These deeds do not automatically transfer at the death of one of the owners, therefore you can designate with your will who will inherit your share of the property ownership.  You can also sell or give away your interest in this property during your lifetime.

Most states, includingMaryland, recognize a type of ownership called T/E; Tenancy by Entirety.  This allows spouses to own property together as a single legal entity.  It is available only to married couples.  Much like joint ownership with rights of survival, a husband and wife who own property T/E each own an undivided interest in 100% of the property.  Each has full rights to occupy and use the property, and each has a right of survivorship.  Under T/E ownership, the property transfers to the surviving spouse upon the death of the spouse who is first to die.     Under this type of ownership, creditors of an individual spouse may not attach and sell the interest of a debtor spouse:  only creditors of the couple together may get a judgment lien against the property.  One owner may not sell or give away his interest in the property without the consent of the other.

Some states such asTexashave what is called “community property laws.”  Under that system, each spouse owns 50% of all the marital property, not just real property. Marylandis not a community property state.

Finally, you may be wondering about what the different types of ownership have to do with your estate plan.  To make plans about what will happen after your death, it is  vital to know how you own property and which, if any, property you can transfer to someone else by means of your Will or Trust.

Hoping this has been helpful to you, I thank you for reading.  Stay well.  See you next week