Buying with husband/wife - Joint Tenants or TIC better?

Discussion in 'Legal Issues' started by thesuperman, 5th Dec, 2019.

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  1. thesuperman

    thesuperman Well-Known Member

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    If buying a property with a husband/wife is it better to buy in JT or TIC when going to hold the property in a 50/50 split? I know with a JT the property passes to the other when a party dies but a TIC goes to the person's estate. I'm still not sure if there's any benefits or disadvantages with one over the other.
     
  2. Scott No Mates

    Scott No Mates Well-Known Member

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    Consider JT for the PPOR so that your spouse is secure in their own home, anything else can go to the estate to be divided as per your will.
     
  3. Terry_w

    Terry_w Lawyer, Tax Adviser and Mortgage broker in Sydney Business Member

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    This is something you need specific legal advice on - from a lawyer - for
    - asset protection on bankruptcy and death and estate planning in general.

    Having the asset as a JT does not allow party of it to go to someone else on death, including a testamentary trust.
    But if can provide greater asset protection if someone were to make a family provision claim - but it can still be attacked in nsw.

    I would not consider anything JT myself.
     
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  4. Scott No Mates

    Scott No Mates Well-Known Member

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    Interesting, I was advised that JT was a good position for this purpose.
     
  5. Terry_w

    Terry_w Lawyer, Tax Adviser and Mortgage broker in Sydney Business Member

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    It which sense?
     
  6. Scott No Mates

    Scott No Mates Well-Known Member

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    @Terry_w - in ensuring that the spouse had a roof over their head. Adequate provision elsewhere to provide for non-dependent adult children with a TT).

    Little chance of being declared bankrupt (self-funded retirees with no debt).
     
  7. Terry_w

    Terry_w Lawyer, Tax Adviser and Mortgage broker in Sydney Business Member

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    You could still leave their your share if held as TIC.
    What if the spouse dies before you and you get remarried, go bankrupt, rent the property, want to transfer 50% of it to a child or children etc.
     
  8. Scott No Mates

    Scott No Mates Well-Known Member

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    Change your will, will becomes invalid if you remarry...
     
  9. Trainee

    Trainee Well-Known Member

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    deliberately putting yourself in an intestate position doesnt seem smart.
     
  10. Terry_w

    Terry_w Lawyer, Tax Adviser and Mortgage broker in Sydney Business Member

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    You missed the point. Family provision claim by the new spouse.
     
  11. Scott No Mates

    Scott No Mates Well-Known Member

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    What I was getting at was that marriage nullifies the previous will or is that bj O longer the case?
     
  12. Hetty

    Hetty Well-Known Member

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    TIC so it goes through the will, not automatically to the other spouse. If you do JC, and you have kids, then you die, and your spouse remarries, they have everything and your kids have nothing, then if they remarry and have more kids your money gets split with those kids when everyone dies. Or worse, if your spouse remarried then died, new spouse gets everything.
     
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  13. Terry_w

    Terry_w Lawyer, Tax Adviser and Mortgage broker in Sydney Business Member

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  14. Lacrim

    Lacrim Well-Known Member

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    Would the new spouse still get it if the property was willed to the kids?

    And if I have a property that's JC, can I make it 50/50 TIC without repaying stamp duty?
     
  15. Terry_w

    Terry_w Lawyer, Tax Adviser and Mortgage broker in Sydney Business Member

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    And
    Legal Tip 234: How do you feel about your spouse remarrying after you death? Legal Tip 234: How do you feel about your spouse remarrying after you death?

    Legal Tip 214: Protecting Your Grandchildren’s inheritance Legal Tip 214: Protecting Your Grandchildren’s inheritance

    Legal Tip 197: Consider the remarriage Risk when doing a Will Legal Tip 197: Consider the remarriage Risk when doing a Will

    Legal Tip 181: Jointly owned Property and Bankruptcy Legal Tip 181: Jointly owned Property and Bankruptcy
     
  16. Terry_w

    Terry_w Lawyer, Tax Adviser and Mortgage broker in Sydney Business Member

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    They could make a family provision claim so it will depend on the circumstances. It is very possible, no matter what is in the will.

    A JT can be severed and go to TIC without duty or CGT as long as TIC is in equal shares.
    Will need the consent of the mortgagee though.
     
  17. Lacrim

    Lacrim Well-Known Member

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    Thanks. In GENERAL, does doing that offer more protection?
     
  18. Terry_w

    Terry_w Lawyer, Tax Adviser and Mortgage broker in Sydney Business Member

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    Sorry I think i misunderstood. Are you talking new spouse coming after the death?

    They could not make a family provision claim on the dead spouse of their spouse.

    If the properties are already owned by the kids when they come they could not make a grab for those.

    Example
    Homer and Marge married and have 3 properties. Homer dies. Marge married Barney
    Homer owned 50% of all properties with Marge as TIC.
    Homer's will now means that Marge now owns her original 50% with all 3 kids holding 1/3 of 50%.
    Marge later separates from Barney and he makes a claim on Marge's 50%
    If Marge died Barney could make a family provision claim on Marge's 50% of the properties, but now the 50% that Homer left the kids.

    Note that Homer should have considered whether he wanted the kids to own 1/3 of all properties or get one each.
    He should have also considered whether any joint ownership of the inheritance should have been TIC or JT
    If it was JT it would keep the whole property in the family should one of the kids die.
     
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  19. Scott No Mates

    Scott No Mates Well-Known Member

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    Or possibly consider the use of a TT?
     
  20. Terry_w

    Terry_w Lawyer, Tax Adviser and Mortgage broker in Sydney Business Member

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    It would be wise to consider a TDT in the will. But Homer then has to consider whether it should be one TDT per child or a combined one.
     

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