Certain types of joint ownership such as joint tenancy with right of survivorship and tenancy by the entirety allow your home to pass to the surviving owner without going through probate. This being the case, joint tenancy is used by many homeowners as an inexpensive and easy way for their real estate to avoid probate. However, just because it is inexpensive and easy does not mean it is a good probate-avoidance tool.
Simultaneous death
While there's a low probability that you and the co-owner of your home will die simultaneously, it is possible. For example, if the co-owner is a spouse, just think of the amount of time you spend together riding in a car, flying out of town, or hanging out at home. You are probably together a lot of the time. If you both were to die in a common event, your home would not avoid probate. Instead, it would pass under the terms of your individual wills (if you have one) or pass to your heirs at law. Either way, your home will have to go through probate.
Incapacitation
Incapacitation can happen to the best of us. If you or the co-owner of your home is in the hospital in a coma or otherwise unable to communicate, anything requiring the consent of the co-owner will be problematic. For example, if you need to sell the property to pay bills or because you get an offer you can't refuse, you'll be out of luck.
Death of the survivor
If all goes well, when the first co-owner dies, your home will avoid probate and be transferred to the other co-owner by virtue of the joint ownership (i.e. joint tenancy with right of survivorship or tenancy by the entirety). However, after the death of the surviving owner, the property will end up in probate if the surviving owner simply relies on the former joint ownership. Joint ownership as a probate-avoidance tool only works for the first co-owner to die (assuming there are just two owners). In the end, the surviving owner will likely wind up doing what he or she should've done in the beginning, which is put the home in a trust.
Revocable living trust
A trust will allow your home to avoid probate should you and the co-owner of your property die simultaneously or when any of the co-owners die (regardless of whether you're the last owner to die). Also, a trust can allow for sale or any other event that requires consent from an incapacitated co-owner without the need to endure a possibly costly and public conservatorship proceeding before the court.
Relying on joint ownership is not a good way to avoid probate. A revocable living trust is designed to avoid probate and comes with other benefits as well. It is a far superior probate-avoidance mechanism than joint ownership.
This article is a service of the Law Office of Keoni Souza, LLC, an estate planning law firm in Honolulu, Hawaii. We don’t just draft documents; we ensure you make informed and empowered decisions about life and death, for yourself and the people you love. That is why we offer a Family Wealth Planning Session, during which you will get more financially organized than you have ever been before and make all the best choices for the people you love. You can begin by contacting our office today to schedule a planning session and mention this article to find out how to get this $750 session at no charge.
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