Probate is a legal process that an estate is subject to when personally held property is going to be transferred through the terms of a will.
During probate, the executor will notify the beneficiaries and post a notice for creditors. They are given time to come forward seeking payment, and while the clock is ticking, the executor will identify and inventory the assets and prepare them for distribution to the heirs.
The court examines the will to determine its validity during probate, and if anyone wants to issue a will challenge, they are given the opportunity.
Probate expenses include a filing fee, the executor’s remuneration, potential legal and accounting fees, appraisal charges, liquidation expenses, and incidentals. Since it is a public proceeding, interested parties can access probate records to pry into the final affairs of the decedent.
When everything is in order to the court’s satisfaction, the estate will be closed after a number of months or even years in some cases. Subsequently, the executor will distribute assets to the inheritors in accordance with the wishes of the testator.
Now that we have provided a general explanation of the probate process, we can address the question at hand. Joint tenancy is the condition of concurrent ownership. For example, if you own a home, you can file the proper paperwork to add a joint tenant to the title.
Property that is held in joint tenancy comes with right of survivorship. As a result, the surviving joint tenant or tenants would inherit the share of the property that was owned by a deceased joint tenant. This transfer would not be subject to probate and the drawbacks that go along with it.
In order for property to be held in joint tenancy, a legal standard called the “four unities” must be met. These so-called unities are time, title, interest, and possession.
This means that the joint tenants must acquire the property at the same time, they must be listed on the same title, and they are required to have equal interests and right of possession. A concurrent ownership situation that does not meet this standard would be a tenancy in common.
To give you an idea of how a tenancy in common could arise, let’s say that you and your friend own a home in joint tenancy. You transfer your interest in the property to your brother.
The four unities would not exist between your brother and the existing joint tenant, so they would be in a tenancy in common situation. After the death of a tenant in common, their interest in the property would become part of their estate, and probate could be a factor.
On the surface, joint tenancy can sound like a very simple probate avoidance solution, but there are some potential problems.
It is important to understand the fact that the joint tenant that is added to the title would become a co-owner immediately. As a result, if the joint tenant is the target of any legal actions, their interest in the property would be in play.
Another drawback is the fact that you would need the cooperation of the joint tenant if you want to sell the entire property.
We should also point out the fact that joint tenancy can apply to bank and brokerage accounts along with real property. There are those that add a joint tenant to an account and tell that person to spread the resources around among multiple heirs when the time comes.
The surviving joint tenant would not be legally required to follow those verbal instructions, and these situations can and do arise.
Better Options Exist
If you want to transfer property outside of probate, there are safer and more effective solutions. A revocable living trust can be used to facilitate probate-free asset distributions after your passing, and in addition to the probate avoidance, there are other very useful benefits.
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We are here to help if you are ready to work with a Burbank, CA estate planning attorney to put an estate plan in place. You can send us a message to request a consultation appointment, and we can be reached by phone at 818-937-2335.