What happens to real estate you hold in joint tenancy when you pass away? – RMS Estates Law

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What happens to real estate you hold in joint tenancy when you pass away?

RMS Estates Law
May 6, 2020

The usual structure of a property held in joint tenancy is that the owners have a right of survivorship upon the death of one of them.

A lot of people think that if they choose to have their home owned in joint tenancy with another person, the property by-basses their will and therefore, the estate administration tax. However, this is not always so, because it depends on who is the person with whom they co-own the property.

If the other owner is their spouse, they receive the property by right of survivorship, with the result that the property by-passes the will, and the estate does not pay estate administration tax. Additionally, no property tax or tax on capital gain will be payable regardless of whether the property is a principal residence or not, due to the spousal rollover exception (you can find more information about it here).

If the other owner is an adult child, for example, the court might not approve the transfer outside the will due to something called a “resulting trust”, where a property legally owned by a person who contributed nothing to its acquisition should go back to the person who purchased it for valid consideration. This will be considered a gratuitous transfer from the parent to an adult child, unless the adult child can provide proof that the gift was intended to them and not merely to be held in trust.

If you have any questions about this topic, I would love to help!

PLEASE NOTE THAT THE CONTENT OF THIS BLOG IS MERELY FOR INFORMATION PURPOSES AND DOES NOT CONSTITUTE LEGAL ADVICE.

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