Avoiding Probate With Joint Ownership

Discover how joint ownership of property aids in avoiding probate.

Multiple types of joint ownership offer a straightforward and easy way of avoiding probate when the initial owner passes away.

In fact, a lot of couples have devised that holding title to their significant assets being joint owners is all the estate planning they wish to be involved in, while they’re still younger. To avoid probate by retaining title as joint owners with another person, you declare on the document that indicates your ownership (a deed for real estate, for instance) how you wish to hold title. Typically, no additional paperwork is needed.

Below are some of the means you can use joint ownership for avoiding probate.

Joint Tenancy Having Right of Survivorship

Property owned in joint tenancy systematically passes, devoid of probate, to the surviving owner(s) after one of the owners passes away. Joint tenancy usually works well when partners (married or unmarried) obtain real estate, vehicles, financial institution accounts, stocks and bonds, or other invaluable property with each other. Establishing a joint tenancy is straightforward, and it doesn’t cost a thing.

In the state of Texas, you require a separate agreement in writing. To establishing a joint tenancy in Texas, every joint tenants are required to sign the agreement. For instance, if you want to devise a joint tenancy financial institution account, indicating your arrangement on the financial institutions signature card is not enough. A financial institution or real estate office can give you a fill-in-the-blanks form that is going to do the trick.

Following one joint owner passing away, typically all the newer owner has to do is complete a simple form and submit it, with the death certificate, to the warden of ownership records: a financial institution, state MVD, or county real estate registers office.

Joint Tenancy

Nevertheless, joint tenancy isn’t always a wise choice. Joint tenancy is typically a bad estate planning decision when an older individual, only seeking to bypass probate, is inclined to put exclusively owned property in joint tenancy with another person. With the addition of one other owner this method creates several possible issues:

You are handing out part ownership of the property. The new owner has rights that you are unable to take back. For instance, the new owner is able to sell or mortgage their portion — or lose it through litigation or divorce.
You might be required to file a gift tax return.
It might create disputes following your passing. A lot of older people make the error of adding an individual as a joint tenant to a financial institution account just for “convenience.” They want someone to assist them by depositing checks and the payment of bills. But following the original owner passing away, the co-owner may assert that they are entitled, as a living joint tenant, to retain the funds leftover in the account. In some cases, perhaps that’s what the decedent really wanted — it’s too late to inquire. If you want to give an individual consent to use your money for you, utilize a power of attorney.

Tenancy by the Entirety

In many states, spouses usually attain title not through joint tenancy, but through “tenancy by the entirety” as an alternative. It’s very comparable to joint tenancy but can only be used by married spouses (or in a couple of states, by same sex couples that have registered within the state). Each bypass probate similarly.

Communal Property Having Right of Survivorship

If you are married (or in California, when you have registered within the state as civil partners) and live or own property in the states of Alaska, California, Arizona, Wisconsin, or Nevada, a different way to partly own property with your partner is available to you: communal property having right of survivorship. If you retain title to property like this, when one spouse passes away, the other systematically owns the asset. The transference of title to the survivor is straightforward and does not require court proceedings.

How Do You Hold Title Now?

Unsure how to hold title? You are not the only one. A lot of people don’t pay that much attention to how their names are detailed on title documentation. Luckily, typically all it takes is a quick look at documentation—for instance, the title to your car—to find out how you and the other part-owner presently holds title.

When You are Unsure How You Hold Title
Type of Property/ Where to Look
Real estate/ Deeds
Financial institution account/The ledger, or the bank book on file at the financial institution
Brokerage accounts/Statements for the account
Car, boat, or other vehicle (title) or registration slip
Individualized stocks and/or bonds/Stock documents or bonds

Source:

Nolo. (2014, October 30). Avoiding probate with joint ownership. www.nolo.com. Retrieved April 26, 2022, from https://www.nolo.com/legal-encyclopedia/avoid-probate-with-joint-ownership-30125.html

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