Sometimes the most obvious answers are not always the most effective when individuals are considering estate planning alternatives in New Mexico. While many parties use joint tenancy with right of survivorship to transfer their family home to a family member or other loved one when they die, this strategy can have drawbacks. Joint tenancy can be an effective tool for transferring the family home to a spouse when you pass away because it allows one’s spouse or other beneficiary to avoid probate. However, those seeking the most cost-effective and efficient estate plan should seek legal advice from an experienced New Mexico estate planning attorney because sometimes straightforward answers of this kind are not necessarily the best option.

The approach of using joint tenancy to transfer one’s residence upon death provides a good example of the risk of proceeding without legal advice. While joint tenancy offers cost and efficiency advantages, it can impair the homeowner’s management and control of this valuable asset.

An unmarried or widowed woman might elect to change the form of ownership to her home to joint tenancy with right of survivorship with her son and herself as joint tenants;

If the woman needed to sell her home, she would not be able to sell without the approval of her son because of his status as a joint tenant. This valuable asset would also be exposed to potential judgments and other creditor/Bankruptcy claims from the homeowner’s son. While the home may be protected to some degree by a homestead, her son’s creditors could place a lien on the house creating an encumbrance that could interfere with her ability to refinance the home, use the home as security for a loan or sell the property. An additional problem is that the decision to use a joint tenancy would impair the ability of the woman to change her mind and take back full control and ownership of what may be her most valuable asset.

While titling real property in joint tenancy is one estate planning option for passing real estate to a family member, there are other options that avoid probate while permitting continued exclusive control and ownership of the asset. An alternative that one of our New Mexico estate planning attorneys might suggest in this situation is a Transfer of Death Deed (TODD).

A TODD can designate the party to whom the property should pass upon death. However, this type of deed does not require joint owners so the homeowner could continue to encumber, sell and refinance the home at the homeowners discretion. The homeowner also would have the option to change his/her mind if she decided later that he/she wanted a different disposition for the  home after death. This arrangement also avoids the problem of exposing the home to potential claims from the beneficiaries creditors.

Many financial planners and online websites suggest joint tenancy as the best option to avoid probate when passing one’s home to loved ones after the homeowner passes away. While this advice is not necessarily wrong, this example shows the importance of understanding and considering all available strategies and their potential disadvantages. A knowledgeable Estate Planning attorney can analyze the available options based on your unique situation so that you can make an informed decision about which option best meets your needs.

The above information is designed solely to illustrate general principles of law, and does not constitute a specific legal opinion on individual cases. We suggest that you contact experienced legal counsel for a specific opinion tailored to your individual circumstances.

Jay Goodman & Associates can analyze your estate and recommend the option best suited to your individual circumstances. The New Mexico Estate Planning Law Firm of Jay Goodman & Associates offers a free consultation in our centrally located offices in Santa Fe and Albuquerque so that we can discuss your options. Call us today to schedule your free consultation at (505) 989-8117 to learn about your rights.



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