Skip to content

Estate Planning | Probate

How Joint Tenancy Intersects With Probate

6 min read
Philip Ahn, Attorney

by Philip Ahn, Attorney

Joint tenancy can significantly accelerate probate proceedings. Property in this form of co-ownership automatically transfers to a surviving joint tenant upon one owner’s death, thereby avoiding probate court involvement.

Joint tenancy provisions can be especially beneficial for married couples – or those seeking to leave a sizable bequest to an individual or group – while minimizing probate tax consequences. By design, joint tenancy grants equal rights to joint tenants, making it a valuable estate planning tool.

Joint Tenancy with the Right of Survivorship

Joint tenancy with the right of survivorship is an estate planning tool that allows two or more people, typically married couples, to own jointly:

  • Real property, such as houses or other real estate
  • Bank accounts
  • Investments or other assets

Survivorship entails that upon one tenant’s death, their share automatically transfers to the remaining joint tenant(s). This avoids probate court and its associated costs and delays, and allows the property to continue functioning with a minimum of disruption.Tax benefits often accompany joint tenancy, as this form of shared ownership can delay the selling of an asset.

What Documents Are Needed to Avoid Probate for a Joint Tenancy Asset?

When a spouse or partner dies in joint tenancy, the surviving party typically needs to provide certain documents to facilitate the transfer of assets without the need for a lengthy probate.

These documents often include:

  • A certified copy of the death certificate of the deceased joint tenant
  • Proof of the survivor’s identity
  • Documentation of the survivor’s ownership status

Having these documents available helps to ensure a smooth ownership transition when one of the joint tenants dies.

What If A Joint Tenant Died Without A Will?

When a person dies without a will while in a joint tenancy arrangement, there are steps to follow to transition the jointly-held assets to the remaining owner(s).

If the surviving owners have documentation like a death certificate and title to the property, then the process should be relatively straightforward. Otherwise, it may take more time to resolve the issue.

Due to the right of survivorship, the surviving party or parties will generally inherit the deceased person’s share. However, this may be contested. It’s advisable to consult with legal counsel to prepare for potential complications in probate.

Joint Tenancy Issues When a Joint Owner Passes Away

Probate-Related Loss of Control

When one joint tenant dies, their share of the property or assets shifts to the surviving co-owner, which may not align with the deceased owner’s intentions.

This can lead to complications, especially in situations involving minor children or when the surviving spouse’s financial security is at risk.

To mitigate these challenges, individuals should carefully consider the implications of asset control loss and explore estate planning options, such as a revocable living trust, to ensure their property and assets are distributed under their wishes and not subject to potential disputes or creditor claims. One could ensure they have a will as well. 

To avoid such conflicts, individuals should consider clear estate planning measures, such as:

  • Specifying their intentions in a legally binding form
  • Obtaining consent from all owners involved to facilitate a smoother resolution process in the event of disputes within joint tenancy ownership arrangements

Frozen Bank Accounts

Bank accounts frozen in the probate process can have significant repercussions for surviving joint tenants. When one joint tenant dies, their share of the bank account may become inaccessible until the probate proceeding concludes, potentially causing financial hardships for the surviving owner.

This situation is particularly challenging when a surviving spouse or other party requires immediate access to funds for essential expenses.

To alleviate these difficulties, individuals may explore alternatives such as establishing a revocable living trust, or preemptively arranging for consent procedures to ensure smoother access to jointly held bank accounts.

Creditor Exposure and Joint Tenants

The death of one joint owner can expose the jointly held property to the deceased owner’s creditors. In such cases, the surviving owners may need to defend against legal challenges, in order to protect their interests and prevent creditor claims from eroding the property’s fair market value.

To safeguard against creditor exposure, individuals should weigh the advantages of joint ownership against alternatives.

Owners can also explore legal protections for specific assets with an estate planning attorney who is familiar with relevant state laws.

Disputes Over Estate Distribution

Dealing with inadequate estate distribution can pose challenges under estate law, especially in joint tenancy or joint ownership arrangements. When one owner passes away, the surviving spouse or co-owner may inherit the entire property, potentially leaving other beneficiaries with insufficient shares.

The unilateral sale rights of a surviving joint owner could lead to conflicts if other joint tenants have a vested interest in the property. These disputes can lead to legal battles, causing delays and expenses in settling the deceased owner’s share.

Community Property and Joint Tenancy

When a person in a community property state dies, the fate of the jointly owned property becomes a focal point. In this situation, the surviving spouse is typically interested in the real property.

Courts often play a pivotal role in ensuring a fair distribution of the property, considering the specific circumstances surrounding the person’s passing. The outcome of these proceedings can significantly impact the ownership of the property held in joint tenancy.

However, community property laws may alter this dynamic, impacting the distribution of property acquired during the marriage. In such cases, one spouse’s death triggers a complex legal process, dividing community property according to state regulations.

Legal Counsel’s Role In Joint Tenant Probate or Planning

Lawyers play a vital role in joint tenancy arrangements. The surviving owner(s) face complex legal issues related to transferring common assets. Whether in the estate planning or probate process, ensuring that a surviving owner or spouse inherits the entire property without the need for probate is a matter for trained experts.

Attorneys can assist in navigating the process by ensuring that appropriate documentation is filed on time, and that the transfer of the deceased person’s share of the property is legally sound. They can also help address potential disputes among joint tenants or other stakeholders, and provide guidance on how best to structure property holdings to align with estate planning goals.

Choosing unbundled legal services can be much more cost effective than other options. For less than half of the average cost of full representation lawyers, you can call an unbundled lawyer for specific tasks while taking on other tasks by yourself to reduce costs. For more complex cases, the unbundled lawyers we partner with also offer payment plans to accommodate your needs.

Related Blog Posts

Ready to Talk to a Lawyer?

Receive a free consultation with a more affordable lawyer in your local area