Find out why you should have a Last Will and Testament, even if all your assets are held jointly.
Many people try to avoid making a last will and testament in order to avoid probate. One method is by owning property jointly with their spouse. This article discusses the concept of joint ownership and Wills in West Virginia.
Jointly owned property refers to property held by joint owners with right of survivorship. This means when one owner dies, the other owner(s) automatically inherit the deceased’s share. The inheritance bypasses the Will and the probate process, making it a popular form of ownership between spouses.
Joint ownership is not limited to married couples. Any person or group of persons may hold property jointly with another. Some states do provide a similar form of ownership which is limited to the marital relationship. This form of ownership is called ‘by the entirety’.
West Virginia has strict rules for determining when property is held jointly. Section 36-1-19, Chapter 36 of the West Virginia Code specifically states that when a person has an interest in property (real or personal) either as joint tenant or tenant by the entireties, that person’s share must pass as though he/she had been a tenant in common. This means the property passes in accordance with the owner’s West Virginia Will (rather than under a joint tenancy). This section can be perplexing but is qualified by the following provision.
The next section (36-1-20) states that the preceding provision (s36-1-19) will not apply where the instrument of ownership manifestly shows that it was intended that ‘the part of the one dying should then belong to the others’. So how do you manifestly show such an intention? Subsection b gives one example, where the instrument joins multiple owners with the word “or”. An example would be: “Sally Smith or Michael Smith”. Alternatively, you could add the following after the names “as joint owners with right of survivorship”. The wording needs to be clear or ‘manifest’.
If you own real property, you need to ensure the type of ownership is clear. You would have included the ownership type at the time of purchase or transfer. Many people aren’t even aware of how they hold their family home with their spouse (whether jointly or as tenants in common). They simply assume that this is the case.
The same wording would need to be on the couple’s saving accounts. Section 31C-6-5 of the West Virginia Code allows members of credit unions to designate another person(s) as tenants in common or joint tenancy with the right of survivorship. You need to check this with your financial institution.
This also applies to personal property such as investments and even the family car. The wording needs to be clear. But what about property for which there is no instrument of ownership? Things like the household goods and furniture. If the spouses have entered into a prenuptial agreement, then that agreement will distinguish between marital property and separate property and the rights to each upon divorce or death of one of the parties.
If there is no valid agreement or Will then this is where things can get messy. If a spouse dies, the surviving spouse is only entitled to either an intestate share under s42-1-3. Alternatively, the survivor may take the elective share (a percentage based on the length of the marriage) of the ‘augmented estate’ under section 42-3-1. Both options require the executor or court to determine what forms part of the decedent’s probate estate (property that was exclusively his/hers and not jointly held on the date of death). This could prove very tedious and is unnecessary.
If you don’t have a Will, the probate estate will be subject to intestacy, which may prove to be even more expensive than if you had made a Will specifying who receives this property. There is no need to put the family though a complex and time consuming exercise. Even if you state in your Last Will and Testament, I give “all my property to my wife…..” the contents of your Will only cover your ‘probate assets’, it cannot change property passing by joint survivorship. So don’t worry, your jointly held assets will not be affected by the Will. But you still should have a Will to cover those assets which are not covered by joint ownership.
Another reason for having a Will (regardless of joint ownership) is simultaneous death. What if something happens to both joint owners at the same time or within minutes or hours of each other? Without either having a Will, jointly held assets form part of the intestate estate of the last surviving spouse.
If it cannot be determined who died first, then the estate will be subject to Chapter 42, Article 5 Uniform Simultaneous Death Act. This legislation divides jointly held property into halves. Each half is then distributed to that person’s heirs in accordance with the intestate succession law. This outcome is a real possibility which once again, can be avoided by writing a Will.
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