Joint Tenancy with Step-Daughter

Dear Len & Rosie,

After my second wife passed away, I put my step-daughter’s name on the title to our house as joint tenants. I tried to sell the house last year but she would not sign the papers because she said she wanted the whole house. I went to a lawyer, and he didn’t do anything. I went to another lawyer, and still nothing. I have already spent $7,000 on lawyers and I have made no progress.

All I want to do is sell the house and give her one-half of the money I get, but she won’t listen. My step-daughter wants to buy the house from me for only $40,000. If she gets it, she’ll sell the house for a lot more money. I pay all the upkeep on the house, including taxes, insurance, and everything else. She never paid a cent. 

I am 77 years old and she is waiting for my death so she can get everything. She never sees me and has never done anything for me since her mother died, even though she lives only 3 miles away. She is so mad about me because I have a girlfriend who takes good care of me. I want to sell the house, but not to her for what little she wants to pay. I worked too hard for that. Do I have the right to sell the house without her signature?

Domenic

Dear Domenic,

Every once in a while someone asks why we tell people to put their homes into a revocable trust to avoid probate instead of just adding their children to the title of the property. The next time that happens, we will show them your letter. When you gave your step-daughter part of your house, you gave up your exclusive control of it. She is as much an owner of the house as you are, at least according to its title. Because of this, you cannot sell the home without her agreement.

You can sue your step-daughter and ask the court to revoke the joint tenancy deed and return the property to your name. You have a case, as long as she did not pay you for her half of the home, and has never contributed to its maintenance, insurance, and property taxes. Your attorney can argue that you added your step-daughter to the title to the home only to avoid probate, and that you didn’t mean for her to own an interest in the property until after your death. This is not an automatic win, because you have to overcome the legal presumption that the title to the home is correct. This may be what your attorneys have tried to do for you. Unfortunately, it’s not cheap. This may easily cost you more than $7,000 to see it through.

If you’re willing to settle for half and you want to sell the property now, you can sue your step-daughter in an action for partition. The court will order a neutral party to sell the property and divide the proceeds of the sale between the two of you.

If you do not want to sell the property, you can sign a deed that will sever the joint tenancy and change the title of the property to a tenancy in common. Your step-daughter will still own half, but she won’t get your half when you die. Then, you can leave your half of the home to someone else in a will or revocable trust.

The lesson learned here is this: Don’t add a child or step-child to the deed to your home without the full understanding that you can’t just take it back whenever you want.

Len & Rosie

Can Pat leave more money to her husband's grandchild?

Dear Len & Rosie,

My husband passed away recently after a courageous 19-year battle with prostate cancer. We made a revocable trust five years ago. The trust leaves everything to my husband’s son and grandson, with a larger share passing to the son. I have no children of my own. I would like to change the beneficiaries to leave everything to my stepson and grandson equally. Do I need to make up another revocable trust in my name, now that my dear husband is gone and designate the two of them jointly as primary beneficiaries? Also, will I get the stepped up value on my husband’s half the property as of his date of death?

Pat

Dear Pat,

You have good questions, but we cannot answer them entirely without reviewing your trust first. Your trust may be an ordinary revocable trust that allows you to make whatever changes you want, or it could be an A/B trust that you may amend only with respect to your share of the trust assets. So let’s have a look.

First, read the provision of the trust regarding trust amendments. It should spell out the extent to which you, as the surviving spouse, may amend or revoke the trust. If the trust says you can amend the entire trust, or the entire trust except for a “disclaimer” trust, then you should be OK. See an attorney and amend the trust to make whatever changes you want. You shouldn’t need a new trust document unless the attorney finds something wrong with the one you have.

If the trust includes references to a “exemption” or “bypass” or “credit shelter” trust, it’s likely to be an A/B trust. These trusts are designed to help reduce or avoid federal estate tax. They work by putting into an irrevocable trust, the “B” trust, the share of the trust assets owned by the deceased spouse up to the amount that may pass free of federal estate tax in the year of the deceased spouse’s death. The B trust is never owned outright by the surviving spouse and isn’t subject to estate tax on the surviving spouse’s death. As the surviving spouse, you should get all of the income earned by the B trust and you can also dip into the B trust principal if you spend most of your own assets first.

If your trust is an A/B trust, it will be more complicated, but you can still accomplish your goal. You will have to divide the trust assets between the A trust and the B trust, and then you can amend the A trust to leave a larger share to the grandson and make the inheritance between the step-son and grandson equal, more or less.

Keep in mind that you really need to see an attorney to do all of this. Your attorney will also be able to identify which assets receive a cost basis adjustment as a result of your husband’s death - essentially, all of the community property and his separate property - and help you obtain date-of-death valuations and appraisals to establish the new basis as well as retitle all of the trust assets in your name as trustee.

Len & Rosie