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Chapter IV Property Transfers After Death A. Overview and Purpose Land Is a Valuable Asset. When Land Ownership Includes Fores

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Chapter IV Property Transfers After Death A. Overview and Purpose Land Is a Valuable Asset. When Land Ownership Includes Fores Chap. IV Property Transfers After Death–Jacobson & Becker 25 Chapter IV Property Transfers After Death A. Overview and Purpose Land is a valuable asset. When land ownership includes forest areas and wood lots, the value attributed to such assets can be misunderstood or overlooked. When the owner of such assets dies, however, the assets transfer to the deceased owner's estate where they await distribution to a new owner or set of owners. The significance associated with the death of a property owner is illustrated by this basic point all items of property have an owner at any point in time. When an owner dies, transfer of the owner's property to someone else is a central issue resulting from the owner's death. In this chapter, we will explore four ways in which property is transferred after an owner's death, i.e., by operation of law, by the intestate law, by a last will and testament, and by a trust created during the owner's lifetime that provides for this transfer after the owner's death. As will be shown here, a person's death sets in motion specific legal rules that make our basic point, that all items of property have an owner at any point in time, a workable legal proposition. The chapter starts with a discussion of joint ownership of property in the form of joint tenancy with the right of survivorship, tenancy by the entirety, and tenancy in common. In some states, these various types of ownership are known by other names such as joint accounts or multiple- party accounts. Some states also recognize the concept whereby an account is owned by one person during his or her lifetime and the balance that remains at the owner’s death is payable on request to someone else after the owner’s death. Such an account is known as a P.O.D. account or one that is “payable on death” to another. Following this discussion we turn our attention to the issue of sole ownership of property and its transfer under a last will and testament or the intestate law that applies in cases where a person dies owning property in his or her own name, but without having prepared a will that provides for the transfer of the property. The fourth way in which property can be transferred is under the terms of a trust created by a property owner during his lifetime and to which the owner’s property is transferred under instructions that provide for the transfer to other owners under described conditions. Under the terms of the trust, the owner designates those who are to benefit from the property. During the owner's lifetime, the owner may retain some benefit from the trust propertywhich ends at the owner's death. Having created the trust relationship, the owner, through the trust agreement, can designate someone to receive it after his death. B. Lesson Objectives When you have successfully completed this chapter, you will be able to accomplish these objectives: 26 Chap. IV Property Transfers After Death–Jacobson & Becker 1. Compare the various forms of joint ownership of property and explain how they are created. 2. Compare property distribution under the terms of a last will and testament to property distribution without a will. 3. Discuss the general characteristics and concepts of distributing property under the intestate law. 4. Discuss the various kinds of trusts that are used in the estate planning situation and discuss the role they play in distributing property after an owner's death. 5. Evaluate the various ways you own your own property and consider the advantages and disadvantages. C. Property Transfers After the Death By Operation of Law Transfers of real estate or personal property that occur by operation of law take place when one joint owner of a property dies and the owner’s interest passes to other owners who survive the deceased owner. Typically this form of ownership form is referred to as joint ownership with the right of survivorship. In some states this concept is simply referred to as joint ownership. This form of ownership is created when the joint owners make a lifetime decision to share ownership of property, and provide that at the end of any joint owner's life, the surviving owner(s) automatically become the owner(s) of the property. During their lifetime joint owners share the right to use all of the property as their own and they share in the income, rents, or profits that the land produces. If the property is sold each joint owner receives a share of the proceeds from the sale. Joint ownership can generally be created in a variety of ways, such as joint sharing of the purchase price, a gift of a one-half interest to the new owner, or purchase of a one-half interest in property that is fully owned by a current owner. Not all forms of ownership involving more than one owner are considered to have this survivorship feature. One way that a joint tenant with the right of survivorship is recognized is by identifying a transaction in which the interests of the owners satisfy the requirement of the unities of time, title, interest and possession. These unities recognize that all owners acquired their interest at the same time, the nature of their ownership interest is identical, their interests are equal in relation to each other, and they share an equal right to possession of the property. Creating a joint ownership interest with the survivorship feature is a matter of state law. Joint ownership with the right of survivorship may require the owners to clearly express their intent to create the survivorship feature as a part of their decision to share ownership with each other. If the owners fail to make this clear expression of their intention a different form of joint ownership, known as tenants in common (described below), is created. In some states, tenancy in common form of ownership is referred to a multiple-party ownership. Unless there is clear evidence of intent to include the survivorship feature when it is created, state law, such as The Uniform Probate Code, may give each joint owner access to the account only to the extent of their net contribution to it. This result is based on the assumption that a person who deposits money in a multiple owner account normally does not intend to make an irrevocable gift of all or any part of the funds represented by the deposit. Rather, such a person Chap. IV Property Transfers After Death–Jacobson & Becker 27 is presumed to intend no change to the present form of beneficial ownership. The funds in the account should be accessible by those who deposited them there. Any amount remaining on deposit at the death of the original owner belongs to the surviving owner. Example: If a single owner decides to add another owner to an account, thereby creating a joint ownership interest, the question is whether the original owner intends to give the new owner a present gift of a one-half interest in the account, or intends for the new owner to receive the property at the original owner's death. In the absence of clear and convincing evidence of the intent to share access to the account during the original owner’s life, it will be presumed that the owner intended to delay the transfer until after death. However, if clear and convincing evidence of an intent to create a present gift is established, each owner has access to an equal share of the account, as though each had contributed an equal amount to it. The person who received the property gift has complete authority and control over the property he or she is given. If such evidence cannot be established, however, then each owner has access to the account in whatever amount equals the proportion of their net contributions to the total account. If the original owner contributes all of the funds and the new owner fails to contribute any funds, then the original owner has lifetime access to the full account and the added owner has no lifetime access to it. Upon the death of one of the owners, the survivorship feature transfers the deceased owner's share to the surviving owners, who acquire a equal share of the portion previously owned by the deceased. For example: If three people are joint owners with the right of survivorship, at the death of one person, that person's share is divided equally between the surviving owners. Their ownership share increases by one-sixth; their new ownership share would be one-half (1/3 or 2/6 + 1/6 = 3/6 or 1/2). At the death of one of the two owners, the surviving owner becomes the sole owner of the property by receiving the deceased's one-half share and adding it to his or her one-half share. Transfer takes place automatically upon the death of the person who owns property as a joint owner with the right of survivorship. Documents which show ownership must specifically state that it is owned as joint tenants with the right of survivorship. Who can be a joint owner of property? Anyone can share ownership of property with another person under this ownership form. No restrictions or requirements limit its availability to family members or other limited groups. Property acquired by either spouse during the time of the spouse’s marriage also creates a question about the rights of a spouse to property that is owned by the other spouse.
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