If I make my mom a JTWROS,can I gift her as small a percentage of the property as possible (say 1%)? Would the recorder’s office accept this?

The reason for doing this is to avoid running down my unified tax credit.

Asked on July 5, 2009 under Estate Planning, California

Answers:

M.D., Member, California and New York Bar / FreeAdvice Contributing Attorney

Answered 11 years ago | Contributor

Unfortunately, the answer to your question is "no".  The reason is that joint tenancy means that you both simultaneously own 100% of the property.  If one of you dies, the property isn't "inherited" or passed through an estate, since the other person already owns the "whole" property.  This can be a benefit down the road, since it avoids estate taxes, probate fees, and whatever other things the government wants to get from you.  However, as you are already aware, it will run down your unified tax credit. 

If, instead of joint tenancy, you specify a percentage interest then each of your wills can specify what is to happen to each share of the property.  For instance, you could bequeath it to each other.  On death, however, the share of the property becomes part of the estate and can result in higher probate fees and estate taxes.

This is something that should be discussed with either a tax lawyer or a financial planner in your area.


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