Probate is a legal process that gets your attention in a negative way when you understand what it is all about. If you maintain direct possession of personal property and arrange for its transfer through the terms of a will, the document would be admitted to probate. The executor would be in charge of the hands-on tasks, and the Surrogate’s Court would do its part from a supervisory standpoint.
Though this process serves a purpose, it can present hassles and expenses for the rightful heirs to an estate. This is why you should discuss other options with a licensed estate planning attorney. If you do this, you will find that there are some asset transfers that are not subject to probate.
Joint Tenancy With Right of Survivorship
If you own property, you have the ability to take advantage of joint tenancy with right of survivorship. A joint tenant is simply a co-owner of the property. At any time, you can add someone else to the title or deed of your home and this person would own half of it immediately.
After your death, the other joint tenant would acquire the death certificate. It would be presented to the appropriate entities, and ultimately, total ownership would be transferred to the surviving joint tenant. The probate court would not be involved in this transaction.
On the surface, this can sound like a fantastic way to get your property into the hands of a loved one with without going through any of the negatives that go along with the probate process. This is true on the one hand, but there are some risks and limitations involved.
For one, if you tell the joint tenant to sell the property and distribute the proceeds among multiple different inheritors, there is nothing that would legally compel this individual to follow the verbal instructions. You may trust them, but sometimes a person will take matters into their own hands out of greed or the perception that they need the money more than anyone else.
Here is another potential drawback. Let’s say that you made your daughter the joint tenant of your home, and a lawsuit is filed against her. The court orders her to pay damages. Under these circumstances, her ownership share of the property that is held in joint tenancy would be in play.
Plus, here’s another hypothetical scenario that can result in negative blowback if you go the joint tenancy route. You decide that you want to sell the property because your plans have changed. Under these circumstances, you would only own half of it, so you would need the cooperation of the other joint tenant.
As you can see, joint tenancy can be accurately described as very risky business.
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Over the years, our attorneys have prepared numerous different special reports that dig deeply into many vital estate planning and elder law topics. They are comprehensive in nature, and they are written by authentic professionals, but they are also easy for the layperson to understand.
One of our special reports specifically focuses on the subject of joint tenancy with right of survivorship, and you can click this link to gain access to your copy of this report or any others that interest you.
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