Joint tenancy for estate planning draw back

 

In lieu of an estate plan some people title all assets in Joint Tenancy with rights of survivorship or joint ownership. This allows property to pass from joint owners to the ownership of a single owner should one of the owners pass. This ownership will pass automatically without probate.  

Example: John and Jane own a house in joint tenancy. Neither party as a will or trust. They have no estate plan executed. John suddenly dies. Under current law ownership in the house will automatically becomes 100% the property of Jane. This process takes place without probate since the property was titled in joint tenancy.

Titling property jointly can help to easily transfer property without the need of probate. However, it can create some unseen problems. It can unintentionally disinherit heirs of one or even both parties of original ownership.

Ex. Again John and Jane own a house in Joint tenancy. They have 3 kids. Neither John nor Jane has a will or Trust. John then tragically dies. Property goes 100% to Jane. Years later Jane meets Dave and they get remarried. At that time Jane adds Dave to title again as Joint tenants with rights of survivorship. Years down the line Jane then dies again without a will or trust. Leaving the property to Dave, not the 3 kids! So by only having the property in Joint tenancy Jane has unintentionally disinherited her kids of any interest in the house. Intestate law will cover other aspects of Jane’s estate but the house would pass to Dave without probate.  

There are ways to avoid this problem. One way would have been if Jane placed the property in a Trust instead of joint ownership with. The trust could have given Dave a life estate in the home. Upon his passing the property would pass to the 3 kids.