Published:Sunday | March 27, 2016
QUESTION:My cousin and I bought a piece of land as joint tenants. We decided that we would build separate houses and agreed which part each would get from the beginning.
I have almost completed my house and she is in the process of building hers. Can I write a will so if I die I can give whomever I want? What if she co-signs with me to hand over my section to the person I wish to will it to? Is it true that I cannot write a will to include my house?
Is it possible to change from joint tenants to tenants-in-common? We currently have a mortgage on the property. Thank you.
Patricia
FINANCIAL ADVISER: As joint tenants, you and your cousin own the property equally and are free to decide how to deal with it, but the decisions made must be made by both of you.
It is quite in order, therefore, for both of you to agree where to build your personal houses, but you should remember that the entire property is owned by both of you equally. Take note also that the house goes with the land.
The right of survivorship is a distinguishing feature of joint tenancy. This means that the property so owned passes automatically to the surviving owner upon the death of the other without the need for a will and the probate thereof. This is, therefore, a cost-effective way of passing property from one person to another, but it can be bothersome.
It can be bothersome, for example, to pass ownership to a third party. You are not able to pass ownership by a will to a third party unless you become the owner upon the death of the other joint tenant.
It would make sense to include in your will a clause which says to whom the property should go if you survive your cousin. There should be a similar clause in respect of the same property in the will that your cousin makes in case your cousin survives you.
It is also important to include a residuary clause in your will to cover any asset that is not specifically named for distribution in the will.
It is possible to change from joint tenancy to tenancy-in-common, thereby giving you more latitude to determine how to distribute your share of the property in life or after death. I would suggest that you engage a competent attorney-at-law to assist you.
The transaction would be treated as an inter vivos gift and would thus require the drafting of a statutory declaration stating the value of the property. It should go to the Stamp Duty and Transfer Tax Office to be assessed for transfer tax and stamp duty. The rate for the former is five per cent of the value declared and the stamp duty is $40.
The instrument of transfer, which can be found on the website of the National Land Agency, www.nla.gov.jm, should also be completed. The above-mentioned documents and the registered title should then be taken to the Titles Office of the National Land Agency for the change of tenancy to be effected.
As there is a mortgage on the property, you would need the consent of the mortgagee the lending institution and you would likely need to use the services of an attorney-at-law.
It is possible to change how a property is owned but it can be quite costly to do so. This makes it very important to exercise care in determining whether property is to be owned as joint tenants or as tenants-in-common when more than one person is assuming ownership of property.
Oran A. Hall, the principal author of ‘The Handbook of Personal Financial Planning’, offers personal financial planning advice and counsel. Email finviser.jm@gmail.com
