Whose Name is on Your Assets?
April 7, 2021
Montana State University educators say it is important for people to understand how they title property impacts who receives it upon their death. Whose name is on the deed for your home? Is it held in Joint with right of survivorship or as a tenancy in common? Whose name is on your savings account?
MSU Extension family economics specialist Marsha Goetting and Madison-Jefferson County Extension agent Kaleena Miller said factors like property title laws combined with Montana intestacy statues impacts who inherits property after a person dies.
Joint tenancy with right of survivorship, according to Montana law, takes priority over a written will. Property held in joint tenancy with right of survivorship automatically passes to the surviving joint tenant even if the written will states otherwise.
As an example, a man with a child from a prior marriage may want his child to receive a specific mutual fund, so he indicates that in his will. However, because he owns the mutual fund in joint tenancy with his present wife, the joint tenancy takes priority. The man’s wife would receive the mutual fund at this death not his child.
“This is why it is important for Montanans to know how their real and personal property assets are titled. Personal property includes checking accounts, certificates of deposits, and investments. Real property includes land and homes,” says Goetting.
“Remember, a will only controls the property after the death of the joint tenants,” Miller added. “For example, if spouses own property in joint tenancy and if the husband writes a will leaving the property to his parents, the will ‘works’ only if his wife is not living. If she is still alive, the property automatically passes to her because of the joint tenancy.”
Goetting said very few Montanans know that, by titling property in joint tenancy with right of survivorship and by not writing a will, their property could pass to unintended heirs. A will could assure that assets do not pass to one set of heirs simply because one person outlived the other by a few hours.
A statute passed by the Montana legislature provides a method of distribution of property held in joint tenancy whenever the last joint tenant fails to survive the other by 120 hours (five days). If this should occur, or if it cannot be determined whether one survived the other by 120 hours, one half of the property is distributed to the devisees, or heirs, of one joint tenant and one half to the devisees, or heirs, of the other joint tenant.
For example, Mary and Steve were deeded a ranch as a wedding present by her parents. Mary and Steve placed the ranch title in joint tenancy with right of survivorship. If they are killed in an automobile accident, neither surviving five days, the property is divided one-half to Mary’s parents and one-half to Steve’s parents. Steve’s parents are not interested in ranching and would probably sell their half. Mary’s parents want to maintain the ranch for another daughter, but would have to buy the other half from Steve’s parents.
If a joint tenant survives beyond the five-day limit, then the property becomes his or hers, and upon death, a part of the estate for inheritance purposes. Property is then distributed according to the person’s written will or, if no will has been written, by the Montana law of intestacy She noted that working with an attorney can provide the appropriate wording to accomplish the will writer’s wishes.
“Make sure the assets you have worked so hard to acquire are distributed according to your wishes instead of Montana law,” Millersaid.
For more info, request the MSU Extension MontGuides “Property Ownership” and “Wills” at http://www.montana.edu/estateplanning/eppublications.html. For those who do not have computer access, copies are available from our county Extension office. Call us at 287-3282 or visit us at 103 West Legion Ave, Whitehall.