Several of my friends have told me that, because of the way Massachusetts probate law is set up, I am better off holding all my assets jointly with my children rather than paying for a trust. What say you?
-- (Posted by Ms. Y on the Forum)
(Lisa Sigman, Esq. or Wakefield submitted the following response on the Forum Chat Room.) Neither trusts nor jointly held property go through probate when the settlor (person establishing the trust) or one of the joint owners die. But whether one option is better than the other is wholly dependent on a number of factors.
Joint ownership of property is really only appropriate when you are talking about 2 or 3 owners. Beyond that, the management, etc. becomes very cumbersome. Once the property is established in this way, you are subject to MA laws on joint tenancy. Which means that in order for you to do anything on your property (building, mortgaging, renting etc.) you must have the consent of all the joint owners. If your children are currently minors, that presents an entire different set of problems.
If you create a trust, where you are the trustee, you have more control over the handling of the property, although you do still have to get permission from the beneficiaries (your children) for some acts. If you need to plan for Medicaid/Masshealth for your care in the future, a trust may better suit your needs than would joint tenancy, as Masshealth has a 5 year "look back" at any property that you hold, whether as a joint tenant or sole owner. If the property is in a trust for more than the 5 year look back period, it likely can not be reached by the state.
While there may be some merit to your statement, it is overly broad and doesn't take into account a person's actual circumstances or goals in estate planning. There are many more factors to consider than those I have mentioned here. You would be best served to speak to an attorney about your needs and concerns before committing to the joint ownership option.
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