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Does Owning A House As Joint Tenants Avoid Probate?

Joint tenancy, or joint tenancy with right of survivorship, is one of the most common types of ownership in California. A majority of married couples own their home as joint tenants. Joint tenancy is when two or more people own property together in equal yet undivided interests. The right of survivorship means that when one person passes away, that person’s share of the property automatically goes to the surviving joint tenant, by operation of law. This happens without the need to go through the court proceeding known as probate. All that’s required is for the surviving joint tenant to file a form called an Affidavit Death of Joint Tenant with the county recorder’s office. People use this way of holding title to property to avoid probate.

However, joint tenancy only avoids probate when the first joint tenant dies. When the surviving joint tenant passes away, the entire property will have to go through probate, unless the surviving spouse creates a trust or adds another joint tenant. If the surviving spouse decides to add a child to the property as a joint tenant, the spouse is giving away half the property during life. This exposes the survivor to the child’s creditors. Also, under joint tenancy, the surviving joint tenant would receive absolute ownership of the property. So, if the child is the ultimate surviving joint tenant and has siblings, he, she, or they do not have to share ownership of the property with their siblings. This result may not be what the parents intended when they were thinking about who would inherit the house.

As a more comprehensive way of avoiding probate, and for other reasons such as minimizing taxes and taking care of blended families, consider creating a revocable or living trust and holding title to the home as trustees. It is important to have an estate plan in place that provides the best results for you and your loved ones.

Give Brockway Law a call if you have any questions.
Disclaimer: The information contained in this article is not, nor is it intended to be, legal advice. You should consult an attorney for advice regarding your individual situation.

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Giuliana V. Brockway

As Principal of Brockway Law in Santa Rosa, California, my practice includes estate planning, wills and trusts, trust and estate litigation, trust and estate administration and probate matters.