Will Your Estate go to Your Desired Beneficiaries?
It appears likely that the individual federal estate tax exclusion will remain at least $3.5 million after 2009. If this occurs, most Americans will no longer need to worry about estate planning techniques such as bypass trusts, marital trusts, etc. With this change, you may think that estate planning is no longer necessary. If so, think again. Regardless of your wealth, without proper planning, your estate may not go to your desired beneficiaries. Here’s how this might occur.
Over the past several years, you and your spouse have successfully built a portfolio of investments. As your house has grown in value and the mortgage principal has declined, you also have a significant amount of equity in your home. To avoid the complications of probate, you have been advised to title your house, your brokerage accounts and your savings accounts in Joint Tenancy with Rights of Survivorship (JTROS). JTROS serves as a “Will substitute” and allows property to pass to the surviving spouse outside of probate.
You and your spouse want your children to inherit the fruits of your labor. Your wills make this decision very clear. Since your total estate is below $3.5 million, you are convinced that your estate planning is complete.
Unfortunately, your children may receive none of these JTROS assets when the second spouse dies. With JTROS, when the first spouse dies, the surviving spouse receives complete ownership and control of the property. The surviving spouse may remarry and put the property into JTROS with a new spouse. If your surviving spouse predeceases their new spouse, the new spouse receives total ownership and control of the house and all of the remaining assets, regardless of what is stated in the deceased’s Will.
To avoid an outcome that neither you nor your spouse wish, pay close attention to how your property is titled. To assure that your children will receive at least a portion of any remaining assets at the second spouse’s death, you can own your investments accounts individually or put them in individual living trusts. It may also be wise to own your house as Tenants in Common (TIC).
With TIC, each spouse typically owns an equal share of the house and has an undivided right to use the property. However, when one spouse dies, the deceased spouse can designate in their will who inherits their interest in the property. You could have your TIC property go into a trust. The trust can allow the trustee to provide income and even principal from any assets to be used to support your surviving spouse. When the house is sold, your 50% of the sale proceeds would go into the trust. When the surviving spouse dies, the remainder of the trust could pass on to your children.
If all of your property is currently titled as Joint Tenancy with Rights of Survivorship, you and your spouse should have a discussion about the pros and cons of this approach. If you decide that this does not accomplish your objectives, meet with an estate planning attorney and discuss the options available that will meet your estate planning goals.
Estate laws are complex. However, changing how property is titled is a simple and low cost procedure. Be sure that you address how your property is titled when you do your estate planning. If you don’t, your estate may never reach your desired beneficiaries.


