Neither a borrower nor a lender be. -- By: Stella Knight

As a parent, I want to treat my children equally and also to make things simple for them when I pass away. I have recently written about the importance of planning – making your wishes known to family members and friends. What happens if you have lent money (whether $10,000 or $50,000) to your middle child, but also placed all your assets in joint name with rights of survivorship with your youngest child? Are you setting your family up for strife, turmoil, and hurt feelings? Here’s an example that illustrates the importance of some
advance planning.

Margaret is a sixty-five-year-old widow and mother of three. At her death, she wants her children treated equally and also to make things as simple as possible for them. She has placed all her assets in joint name with rights of survivorship with her youngest daughter, whom she trusts implicitly. Margaret assumes that when she dies, the youngest daughter will divide any remaining property with her brother and sister.
Furthermore, Margaret has loaned approximately $25,000 to her middle daughter.
First, it’s important for Margaret to accurately and completely express her desires either in a will or trust or to family members, so that at the time of her death there will not be hurt feelings, unanswered questions, and a divided family.

There are different methods for distributing property at your death: by operation of law, disposition in a will, or distribution pursuant to a trust. Assets that you own with a child (with rights of survivorship) will pass to the child by operation of law since (it is assumed) that the child will be the surviving joint owner.
These assets will not be part of your probate estate. The child becomes the sole owner of these assets. The potential problem: what if she decided not to divide these assets with your other children? This does happen.

Furthermore, there may be gift tax consequences to your youngest child if she were to divide the assets and give more than $14,000 to each of her siblings in a year. 

Is this really what you want?

There are many serious issues regarding the loan to the middle child. First, is there anything in writing that states the interest rate and the amount and frequency of payments? If not, you should get something in writing immediately. The writing should include this important information as well as when the debt is to be paid in full. Is this loan a secured obligation? In other words, has your daughter given you a lien or second mortgage on her home or business? If your daughter doesn’t repay the loan, does she have any assets to sell to
pay the debt? Are your daughter and her husband jointly liable for the loan?
At your death, it will be necessary to establish the date of death value, also known as the outstanding balance on the loan. Have you been keeping detailed records of payments? Many times, family members make no payments, only interest payments, or partial payments during the lender’s lifetime. If accurate records are not kept, the outstanding balance may be a source of contention among your children. Whether or not you intend to forgive this loan at your death – it should be stated in your will or trust. There are also tax
consequences both during your lifetime and at your death regarding this loan to your daughter. The discussion regarding potential tax issues is beyond the scope of this article.
Now is the time to open the lines of communication with your children and to discuss these issues. It is important for you to know your options and to make your desires known to your family and professional advisors. You can decide to treat this as a loan, as an advancement against your daughter’s inheritance, or as a gift. Open communication will allow family members to know what’s going on. When action is taken in secret, feelings are often hurt and the family may become divided. Your children may have some suggestions depending on their financial positions and further concerns. Avoid future family conflict, seek competent
advice, and get something in writing.

Stella Knight is an attorney licensed in North Carolina and Florida, with a major area of her law practice emphasizing estate planning, probate, trusts, wealth preservation and elder law.

This is a fictitious situation to illustrate the principles discussed. The information contained in this column is of a general nature and does not constitute legal advice.
If you have questions, consult with a qualified attorney.