Beware of Joint Tenancy Deeds

Many people have this idea that they can eliminate probate simply by owning their assets with joint tenancy. Well, that works sometimes, but you have to be careful to make sure that the asset is held in ‘joint tenancy with right of survivorship‘. Those are the magic words that have to be on the document, on the deed, on the bank account. Without the words ‘with right of survivorship‘ the property does not automatically go to the other joint tenant without probate.

Too many times people have come to me and said, “I have this deed. Real estate is being held by me and by my deceased wife as joint tenancy, but the title company won’t let me keep it in my name or sell it without going through probate. They say it needs to have some additional language.” I have to agree with them. The magic clause ‘with right of survivorship’ is missing. That means it will require probate.

Joint tenancy simply postpones probate. Even if that magic phrase is on the deed — it’s held as joint tenants with right of survivorship — this simply means it postpones the probate until the second death. Sure, it will avoid the probate on the first death. With right of survivorship means the property automatically belongs to the survivor. But at the death of the second person, this property is still subject to probate. So it does not avoid it altogether.

Never hold property in joint tenancy with anyone other than your spouse. I recommend that you never hold any kind of property in joint tenancy with anyone other than your spouse. Now I hate to use that word “never.” It seems that there is always an exception. But I haven’t found the exception to this one, yet, because joint tenancy also means joint liability. Now with your spouse, that’s not so bad. You usually have joint liability anyway, but with anyone other than a spouse, do you want to be held accountable for their liabilities?

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