[WSBARP] joint tenants with rights of survivorship

[Marcus Fry]

Kristina:
First, you can do a community property agreement that only applies to a particular piece of property.  The benefit is that you get a full step up in tax basis as opposed only a step up in basis to the decedent’s ½ under a JTWROS situation.  Obviously, there are consequences to converting property to CP, and therefore, your client needs to be advised of that right although from the below, it looks like your client may have already given ½ to his/her spouse.  I am not sure why you would do TOD if the intent is for the surviving spouse to receive the asset.  JTWROS would suffice, but again not receive the tax benefits if the property was held as CP.
If you go the CP route, not only would I do a CP agreement, but I would probably have them execute a new deed placing the property into their names as husband and wife as CP.  Otherwise despite the CP agreement (unless you record it), the property record would show the property held as JTWROS, in which case either one of them could transfer or encumber his/her interest in the property without the consent of the other because no third party would know (or have constructive knowledge) that it was CP.

Marcus J. Fry
Lyon, Weigand & Gustafson, P.S.
P.O. Box 1689
Yakima, Washington  98907
Telephone:  (509) 248-7220
Facsimile:  (509) 575-1883

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From: wsbarp-bounces at lists.wsbarppt.com [mailto:wsbarp-bounces at lists.wsbarppt.com] On Behalf Of Kristina Driessen
Sent: Wednesday, November 29, 2017 3:19 PM
To: WSBA Real Property Listserv
Cc: solo-and-small-practice-section at list.wsba.org
Subject: Re: [WSBARP] joint tenants with rights of survivorship

I know this has been posted before; but can someone explain the pit falls of putting property into joint tenants with rights of survivorship vs. two transfer on death deeds.
The parties are married and one spouse executed a QCD to the other; so both names are on title at this point.
The parties are married, but wish to avoid a probate. A community property agreement is not the answer as there are children from a previous union. Unless, it is possible to do a community property agreement that only relates to the real property?
I seem to recall the advantages of not doing the joint tenants with rights of survivorship, but am drawing a blank.

Kristina A. Driessen
Ryan & Driessen
Attorneys at Law
16 A Street SE
Auburn, WA. 98002
(253) 939-0811
(253) 939-0471 fax
kristina at rdattys.comcastbiz.net<mailto:kristina at rdattys.comcastbiz.net>

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