A Jolt to Joint Tenancy: Warning shot to seniors

A Jolt to Joint Tenancy: Warning shot to seniors

As some senior citizens have learned, even long-standing basics of the law don’t withstand the needs of government agency to pay the costs of health care.

In California, the Department of Health Services (DHS) operates under a regulation that changes the common law character of joint tenancy. This regulation, known as 22 CCR 50960.12 [DHS 12], effectively overhauled the legal concept of the Right of Survivorship previously practiced under California Common Law.

Under the Right of Survivorship, which existed in joint ten- ancy definitions before California even became a state, if a person owned property with a someone who was joint tenant instead of a tenant in common, the first person’s death caused the rights of that deceased in that property to die with him or her, making his or her interest pass to the other owner or owners instantly at the moment of his or her death with no requirement of a will, a trust, a deed, or probate. The death wiped out the ownership interest of the deceased joint tenant, and the interests of the other owner or owners immediately increased without any ac- tions required on their parts.

In other words, a one-half owner of a property who sur- vived the death of a joint tenant would have expected to become the full owner of that property after the other joint tenant died, without any creditors having the ability to attack the property through the deceased’s estate unless they had previously filed a lien against the property. The amazing thing is that DHS has published materials that make it appear that its one regulation is the “law of California,” which clearly it is not. It is a single rule of one solitary agency. Unfortunately, as often happens with illconceived laws, the effects of DHS 12 have reached beyond their intended consequences.

Consider the impact on Robert, an 80+ year-old man who felt concern over the plight of a long-term friend, Harry. Harry had home problems, so Robert, who had a large debt-free home that was paid off, let Harry move into his home. The two widowers enjoyed the arrangement, since it meant that they both had someone to talk to in the morning.

Robert wanted to avoid the cost of a will or a trust, so he found a computer program at a stationery store and printed out a new deed for his home which named Robert’s son Frank and Robert’s friend Harry as joint tenants with him on his property. Robert’s goal was to have his property automatically pass at the time of his death under Section 13050 of the Probate Code to both his friend Harry, and to his son Frank. Robert planned to have Harry own the home jointly with Frank as survivors after Robert died; the next step was for Frank to receive the home by Right of Survivorship from Harry when Harry died.

If Robert had talked to Harry about his plan, he would have learned that Harry had already started to feel the effects of Alzheimer’s disease, and would not outlive Robert. Harry spent two years in a long-term care center, sponsored by Medi-Cal, and died owing a significant sum to the state. After Harry’s death DHS filed a lien against Robert’s property (without his knowledge) for the funds spent on Harry’s stay at the center.

When Robert died his son Frank re- ceived the home by Right of Survivorship, subject to the lien from the state. The result did not affect the rights of the Nursing Home debtor, Harry; instead, it was the legal rights of the survivor Robert, which were violated.

It is important to remember that Har- ry had never contributed financially to the cost of Robert’s home. In fact, he had never paid rent to Robert, and he had never paid any of the addi- tional costs of running the household that came from his living with Robert. Robert’s generosity had been a won- derful impulse, but he should have asked an advisor about whether the step of putting his friend on his home as a joint tenant was the best way to help his friend. Joint tenancy has always carried multiple tax and control problems for estate planning that make it inefficient; the DHS 12 provisions that eliminate the effects of the Right of Survivorship make it far too dangerous to use for senior planning purposes.

Donald A. Hunsberger

Hunsberger Law is a full-service estate and busi- ness planning legal firm, with estate planning attorneys and a licensed, professional fiduciary on staff. Connect with Don Hunsberger by calling (714) 663-8000 or visiting www. hunsbergerlaw.com

More in this category: Preserving Your Legacy »

Latest News

Spotlight on: Wig-Wag Dog Grooming

Business Showcase Sorbet Mag

Spotlight on:  Wig-Wag  Dog Grooming

It’s no surprise why Wig-Wag Dog Grooming is a favorite of San Juan Capistrano residents. Is it because groomer...

Water in the Garden. Quality Care and Stellar Customer Service Characterize this Full-Service Koi Po…

Business Showcase Jody Robinson

Water in the Garden. Quality Care and Stellar Customer Service Characterize this Full-Service Koi Pond Maintenance Company

When we moved into our home three years ago, the property came with a very pretty pond stocked with colorful ko...

Finding Good Food Fast at Tokyo Joe’s

Dining Out Sorbet Mag

Finding Good Food Fast at Tokyo Joe’s

The term “fast-casual” was apparently coined by Paul Barron in the late 1990’s. The creator of FastCasual.com...

Making Guests Their “SpecialTea,” the Tea House on Los Rios celebrates its 20th Anniversary

Business Showcase Jody Robinson

Making Guests Their “SpecialTea,” the Tea House on Los Rios celebrates its  20th Anniversary

Perfectly situated between the hustle of Los Angeles and the bustle of San Diego, the historic Los Rios Distric...

Capital Bank welcomes Donald Solsby as Senior Vice President and Orange County Regional Commerci…

Finance Sorbet Mag

Capital Bank welcomes  Donald  Solsby  as Senior Vice President  and Orange County Regional Commercial Banking Manager

Capital Bank, a division of Seacoast Commerce Bank, a wholly-owned subsidiary of Seacoast Commerce Banc Holding...

Segerstrom Center for the Arts Welcomes Back Award-Winning Singer and Actress Kristin Chenoweth

Entertainment Sorbet Mag

Segerstrom Center for the Arts Welcomes Back Award-Winning Singer and Actress  Kristin Chenoweth

February 3, 2018 in Segerstrom Hall Segerstrom Center for the Arts welcomes Tony Award® and Emmy-winning perfo...

Segerstrom Center for the Arts Presents Center Debut of Ebène Quartet

Entertainment Sorbet Mag

Segerstrom Center for the Arts Presents Center Debut of Ebène Quartet

Sunday, March 4, 2018 in Samueli Theater Segerstrom Center for the Arts welcomes the Center debut performance ...

Sun Soaked California History in Old Town San Diego

Travel Jody Robinson

Sun Soaked California History in Old Town San Diego

At elementary schools all over California, fourth graders have been making missions from craft supplies for yea...

Addressing Scoliosis with Pilates & Yoga

Health & Wellness Align Pilates Team

Addressing Scoliosis with Pilates & Yoga

According to the University of Maryland Medical Center, Scoliosis affects nearly six million people in the U.S...

Family Friendly Home Improvement with GM Pacific Pro Construction

Business Showcase Jody Robinson

Family Friendly  Home Improvement with  GM Pacific Pro Construction

There is a marked difference between a capable contractor, and the near-comical profile of an incapable one. Ak...

Ryan Furlet: South County’s K-9 Guru

Business Showcase Jody Robinson

Ryan Furlet: South County’s K-9 Guru

There is something powerful about true, deep calm. The spread of quiet. Perhaps the draw of it is why so many s...

Snow Meets Science at Discovery Cube’s Annual Winter Wonderfest through January 7th

Entertainment Sorbet Mag

Snow Meets Science at Discovery Cube’s Annual Winter Wonderfest through January 7th

Winter Wonderfest Offers Kids the Chance to Learn About the Science of Snow with Interactive Exhibits Featuring...

New Year - Fresh Start

Education Mary McPherson

New Year - Fresh Start

As it happens each January, we all have the best of intentions in keeping our “new” resolutions. Which, for mos...

Segerstrom Center for the Arts Celebrates Opening of Julianne and George Argyros Plaza and Center …

Entertainment Sorbet Mag

Segerstrom Center for the Arts  Celebrates  Opening of Julianne and George Argyros Plaza and Center for Dance  and Innovation

Free Performances, Events, Music and Family-Friendly Activities Marked Day-Long Celebration Segerstrom Center ...

Pets of the Month

Home Life Jody Robinson

Pets of the Month

Four year old Alder is a sweet, little guy ready to make new friends.  He loves playing the yard and going...

United American Mortgage Corporation

Finance Sorbet Mag

United American Mortgage Corporation

Trusted, tried and true. That’s the reason why United American Mortgage has been successful for over 25 years. ...

Battling the Isolation Crisis with ALYCEMates

Health & Wellness Jody Robinson

Battling the Isolation Crisis with ALYCEMates

When one contemplates the term “health crisis,” images from the 1995 medical disaster movie Outbreak come to mi...

Unique Boutique: Doheny Clothing Exchange

Business Showcase Sorbet Mag

Unique Boutique: Doheny Clothing Exchange

Certain things in life I am very grateful for. These things include chocolate, wine, soul music ...

THE ART OF FALSETTO

Entertainment Sorbet Mag

THE ART  OF FALSETTO

“The gypsy cri-i-i-ied…” Lou Christie – The Gypsy Cried Was the voice you heard a high pitched female alto, a ...

Segerstrom Center for the Arts and Attila Glatz Concert Productions Proudly Announce Salute to Vi…

Entertainment Sorbet Mag

Segerstrom Center for the Arts  and Attila Glatz Concert Productions  Proudly Announce  Salute to Vienna New Year’s Concert

Celebrate the arrival of 2018 in spectacular style with Salute to Vienna New Year’s Concert at Segerstrom Cente...

Prev Next