Ask the Probate Judge—Dangers of Joint Tenancy
Rudd, appeared July 22, 2004, Albuquerque Journal, Business Outlook
Reprinted with permission
Editor's note: This column may not be quoted or reproduced in whole or part without express written permission of the author.
Q: My mom added me as a joint tenant on the deed to her house. I got behind in my child support payments, and now they have put a lien on my mom's house for my debts. This doesn't seem fair. Can they do this? Anonymous
Your question illustrates a major danger of joint tenancy ownership. Parents often add an adult child's name as a joint tenant on a bank account or home. Parents who add children as joint tenants typically do not intend to give the children ownership rights over the asset. Instead, they usually add a child's name to avoid probate or to permit access if the parent becomes ill. But once someone is on a deed or account as a joint tenant, they share ownership rights to the property, as well as liability for each other's debts.
The parents do not realize that the child may be able to withdraw all of the assets from a joint tenancy bank account without the parents' permission. Also, if the child is sued, goes bankrupt, or gets a judgment against him or her, the parents' account can be attached to pay the debts of the child. If the child's name is on the parents' bank account, the parents' account can also be attached to pay state and federal tax liens against the child.
Similar principles apply to houses held in joint tenancy. Further, after you add another person's name onto the house title, you usually will not be able to sell the house unless both joint tenants agree.
The fact that a lien exists against your mother's house means you must have a court judgment against you. Judgments in New Mexico are good for fourteen years. The person who is owed the debt (or his/her attorney) will search for assets that have your name on the title to pay the judgment. If you have no bank accounts, houses, etc. in your own name to attach to pay the back child support, then they will search for other assets that include your name.
In your case, your creditors must have found the house that has both your name and your mother's name. Even though she paid for the house, after she added you as a joint tenant, she exposed her house to liability for all of her debts, as well as all of your debts. So, to answer your question, yes, because of the joint tenancy title, a lien can be put on your mother's house to pay your debts.
Is it fair? If you had paid the back child support you owed and avoided a lawsuit, then this problem would not have arisen. If she had not added you to her house as a joint tenant, her house would still be protected from your debts.
You should ask yourself if it is fair that your own actions are causing legal problems for your mother. Then I hope that you will accept responsibility for your obligations, pay off the judgment against you for back child support, and protect your mother's house. You may need an attorney to help prevent her house from being sold to pay your debts.
While joint tenancies avoid probate, individuals should also recognize the drawbacks of this type of ownership. New Mexico has much safer ways to avoid probate than joint tenancy. I hope your question will help others prevent a tragedy like the one that has befallen your mother.
© 2004, Merri Rudd & Albuquerque Journal, All Rights Reserved