How to make an intergenerational joint tenancy work

It's great that people are reading my warnings about using joint tenancy as an estate-planning tool without legal advice. This question from a reader gives me a reason to go a little deeper into the issue of intergenerational joint tenancy.

"I live with my mom in her principal residence. It is paid for and she has no debt. She intends to pass on the house to me after her passing, and her remaining assets divided up equally amongst the other siblings. Having read some of your other articles regarding inter-generational joint tenancy not working as true joint tenancy, what is the best and most definitive way for her to pass on her house to me without having to incur probate cost and deal with unwanted conflicts from other siblings ?"

A parent who wants to leave his or her home to one of the children has a couple of options. There is never one right answer or arrangement that suits everyone.

You are right that if your Mom doesn't add you as a joint tenant on the property, and the property is in her name alone when she passes away, it will be necessary to probate her will in order to transfer the house. Adding you as a joint tenant might or might not keep the house out of probate - more on that in a moment - but even if it did keep the house out, the chances are good that your Mom's will would have to be probated anyway if there are other assets.

If your Mom wants to add you as a joint tenant on her house so that you inherit the house on her death, it can be done. Yes, you are right that intergenerational joint tenancies don't automatically operate as true joint tenancies any more, but there is more to that general rule. If there is evidence provided by the parent at the time the property was made joint, this may well serve to create a joint tenancy that will properly hold up. This is why I always tell people not to put the house in joint names without legal advice, because the lawyer will help the parent document those intentions in the right way.

So, your Mom can add you as a joint tenant on the house and document her intentions. To make that even stronger, your Mom can make a new will close to the time she changes the title on the house and confirm her intentions in the will. As mentioned, this might not avoid probate for the other assets of the estate but it would keep the house out of probate. That would keep probate fees lower.

Conflict from other siblings is an issue that causes untold damage and I think you and your Mom are smart to think about the optics of leaving the house to you. The way I read your question, I concluded that you get the house and your siblings divide the rest, without you getting a share of "the rest". I don't know what the monetary value is, but given your concern over conflict, I assume they'll be getting less than you will in terms of value. Is there a reason why your Mom wants to give you more? Have you been the one who has always helped her, or do you already live in the house? Has your Mom already given financial help to the others? Even a brief statement in the will that explains her actions can have a calming effect. I am talking about a statement that starts off with "I love all of my children equally but I am leaving a bit larger share to Child X because...", followed by one or two lines explaining her reason.

Also, your Mom needs to clarify whether getting the house means also getting the contents of the house along with the title. Personal items cause more fights than money does, so she needs to be VERY clear on whether your siblings can take anything out of the house.

This is not a will that your Mom should be making on her own. She should talk to a lawyer who specializes in wills and estate planning to discuss the wording of the will and the implications of an intergenerational joint tenancy.