Hinshaw Estate Planning Blog

Monday, July 18, 2016

Joint Tenancy

Joint ownership with right of survivorship or "joint tenacy" is often relied upon as a probate-avoidance mechanism, but its risks are often not even considered.  Adding a joint or co-owner exposes the affected asset to the joint or co-owner’s liabilities, increasing the owner’s risk of being named in a lawsuit or losing the asset to a creditor of the joint or co-owner.

With right of survivorship property, when one owner dies, full ownership usually transfers to the surviving owner without probate; but what if that surviving owner dies without adding a new joint owner, or if both owners die at the same time?  Then the asset must pass through probate before it can go to the heirs.  This could cause someone in your family to become unintentionally disinherited when the property transfers automatically on death because a will does not control most jointly owned assets.

Moreover, avoidance of probate is not guaranteed with non-probate transfers.  If "my estate" is listed as the beneficiary, or if a valid beneficiary is not named, the affected non-probate assets will have to go through probate, which will determine who gets what part of the estate.  So, too, if a minor is the beneficiary, the asset holder will probably insist on there being a court-appointed and supervised guardian to receive the assets and manage them for the minor.

There is, however, one kind of non-probate asset system that has been demonstrated to work exceedingly well to meet all of the client’s estate planning goals:  the revocable living trust.  Property that is held in a client’s revocable living trust will bypass probate and can be used by the trustee to care for the incapacitated owner without court involvement or interference.  Other non-probate assets that name the client’s revocable living trust as the beneficiary will also bypass probate.

Hinshaw Estate Planning is a practice group of Hinshaw, Marsh, Still & Hinshaw and assists clients in matters related to Estate Planning, Asset Protection, Planning for Children, Inheritance Protection, and Estate & Trust Litigation in the areas of Saratoga, San Jose, Los Gatos, Monte Sereno, Campbell, Santa Clara, Sunnyvale, Cupertino, Los Altos, Los Altos Hills, Mountain View, and Palo Alto within Santa Clara County, the areas of Menlo Park, Woodside, Atherton, Portola Valley, San Carlos, and Redwood City within San Mateo County, and the Greater San Francisco Bay Area.

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