They say that a little bit of information can be a dangerous thing. This definitely enters the estate planning realm as it applies to probate avoidance.
In this post, we will examine the probate process, why people avoid it, and a risky approach called joint tenancy.
Why People Want to Avoid Probate
Probate is the legal process that takes place after someone passes away. It involves validating the will, identifying and valuing assets, paying debts and taxes, and distributing property to the rightful heirs.
Although it serves an important purpose, probate can be time-consuming, expensive, and public.
Because of these drawbacks, many people look for ways to pass their assets to loved ones without involving the probate court. This is a smart goal when handled with proper planning, but problems can arise when you rely on shortcuts instead of sound legal advice.
What Is Joint Tenancy?
One of the most common probate-avoidance strategies is joint tenancy with right of survivorship. This means that two or more people own a piece of property together, and when one person dies, the surviving owner automatically receives the deceased person’s share.
On the surface, this sounds like a simple and effective way to avoid probate. For example, you might add an adult child to your home’s title, thinking that this will allow the house to pass to them without going through court.
While that part is technically true, joint tenancy can create more problems than it solves. Let’s look at why joint tenancy is often a risky and unreliable strategy.
You Could Lose Control of Your Property
When you add someone to your property title as a joint tenant, they become a full co-owner. This means they have equal rights to the property, even while you are alive. If you later decide to sell, refinance, or transfer the property, you will need their consent.
You also can’t remove them from the title without their agreement. Once the property is jointly owned, you’ve given up the ability to act independently.
This can be frustrating or even harmful if the relationship changes or if you and the other person disagree on what should happen with the property.
Your Property Becomes Vulnerable to Their Issues
Another major concern with joint tenancy is that your property becomes exposed to the other owner’s legal or financial troubles. If your co-owner is sued, divorced, or has debt, your property could be at risk.
For example, if you add your child to your home’s title and they later file for bankruptcy, their creditors may come after their share of the property. You may have intended to protect your assets, but joint tenancy could end up doing the opposite.
This issue also applies if your co-owner is involved in a car accident, business dispute, or tax problem. Anything that affects their financial stability could affect your home or other jointly held property.
It Can Create Inheritance Problems
Joint tenancy can also disrupt your estate plan. When you die, the joint tenant automatically receives the property. That transfer happens immediately and outside of your will or trust.
If you intended for your property to be divided among multiple heirs, joint tenancy may cause an unfair or unintended outcome.
Imagine you have three children, but you add only one of them as a joint owner to your house. You may have told them to divide the property with their siblings after your death, but there is no legal requirement for them to do so.
Once they inherit the property, they can do whatever they want with it. Verbal instructions are not enforceable.
This can lead to resentment, broken family relationships, and even lawsuits among siblings. What started as a simple plan to avoid probate may end up causing lasting damage.
There Is a Safer, Smarter Alternative
Fortunately, you don’t have to rely on risky strategies like joint tenancy to avoid probate. A well-drafted revocable living trust can allow your assets to pass directly to your beneficiaries without court involvement.
Unlike joint tenancy, a trust gives you full control while you are alive. It also allows you to provide detailed instructions for what happens after you pass. Probate avoidance is one major benefit, and there are others we will look at in future posts.
Consult With a Phoenix, AZ Estate Planning Lawyer!
If you are ready to work with a lawyer to put a plan in place, we can help. There are Morris Hall offices in Tucson, Phoenix, and other locations around the state, so we have a wide reach.
To schedule a consultation, call us at 888-222-1328 or send us a message through our contact page.
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