Probate is the system the court uses to administer a person's estate, either through a will or through intestate succession. Clients often ask for ways to avoid the probate process, such as adding a child to their bank account or adding the child's name to the deed.
Adding a Child to a Bank Account
In most cases, adding a child to your bank account is not a good idea. A parent who adds a child to his or her bank account, may interfere with the will, and could put the account's funds at risk.
Generally, a power of attorney is the best way to manage a loved one's assets. A power of attorney is a superior way to handle these assets because it gives far more expansive control to the child over the parent's assets, but requires the child to act as a fiduciary to the parent. A power of attorney can allow a child to manage all assets in the parent's bank account. Additionally, a power of attorney can allow the child to become an agent to call insurance companies in order to settle disputes, and to enter and break contracts on behalf of the parent.
There are many risks involved with adding a child to the account. If the child has creditors or becomes subject to a judgment, those assets can be used to pay the amount owed by the child.
If another person is added to the account, the bank will give both parties full access to the funds within the account. This means the child would be allowed to withdraw funds whenever he or she wanted without restriction. While many parents may think this may never happen, we see it all the time.
Additionally, all the funds in this account would pass outside the probate process. However, if there is a will, the child is not legally obligated to distribute those funds in accordance to the will. These funds would also not pass to other heirs in accordance with Florida's intestate laws.
There may also be gift tax costs for adding someone's name to an account other than a spouse. Besides this cost, when the child is added to the account a gift of up to 50% of the account value takes place. This can cause gift tax returns to be filed with the IRS. There are limits on yearly and lifetime tax-free gifts, which could mean much of the account is subject to taxation. This situation can also be avoided by giving the child a power of attorney. In addition, this gift could disqualify the parent from nursing home coverage if it occurs within 5 years of needing coverage.
Adding a child to a Deed
Adding a child to a deed is also a bad idea for many of the same reasons. This is usually done in Florida by a life estate deed. This document would give the parent a present interest in the property and the child a future interest.
In this situation, a parent would retain the present right to live in the home. This right would last as long as the parent, or their spouse, is alive. During this time, the child retains a future interest in the home. This means as soon as the parent dies, the child becomes the owner and possessor of the home.
This situation creates some potential problems because the courts view a life estate deed as a gift to the child. This means the parents could lose a step up in tax basis for the children, face penalties and taxes for failure to perform gift tax returns, and lose eligibility for nursing home coverage.
A child's future interest can also be at risk to creditors and become subject to a judgment. While a future interest may not appear to have a money value on the surface, courts often allow the value of a future interest to be determined based on certain tables. These tables determine a future interest's value by incorporating factors such as the age of the parent, their life expectancy, and the current interest rates.
There are ways of avoiding probate, but doing so without the guidance of an experienced Florida Estate Planning attorney can put your family and assets at risk. For more information on how to plan your estate and power of attorney in Florida, contact Jacksonville estate planning attorney David Goldman at 904-875-1200.