Can you use your will to change joint ownership of property?

Below is a question that illustrates a question that arises frequently among those planning their estates. It involves trying to work around a joint property designation.

"We are trying to draw up a will. If one spouse dies, we want to divide their portion of joint assets (50%) among the surviving spouse (50%) and two adult children (25% each). Our concern is will the assets (house, property) have to be forced liquidated to pay out the children? How can this be avoided?"

You are making a fundamental error in your planning. That mistake is trying to make a will control joint assets. The legal nature of a joint asset is that ownership on the death of one owner is already determined while both owners are alive, and your will does not affect this. Regardless of what your will says, on the death of one of the joint owners, the property will pass to the surviving joint owner.

Therefore, if you really want the children to receive a share of the joint property, the surviving joint owner will have to sell the property to pay out the children.

I hesitate even to type this next paragraph, as I do not know your situation, your assets, or the rest of your estate-planning goals. Changing the ownership of the property to tenants in common might be a solution to your question. However, making a change like that is not something that should be done without first working through tax consequences and other possible outcomes. Make sure you understand any downside to any changes you make.

Every estate plan is a combination of a will, joint property designations, beneficiary designations, wishes and goals. I strongly suggest that you sit down with an experienced estate planner, and possibly an accountant, to discuss your situation. There may other ways to achieve your goals or address your concerns.