Legal Tips and Resources
Jointly-owned property is anything owned by 2 or more people. There are several types of joint ownership and, based on the type, it may not have to go through probate. Settling an estate, also known as probate, can be time consuming and expensive. Jointly-owned property may be an attempt to avoid probate.
Types of Joint Ownership
There are four different forms of joint ownership:
- Tenancy in common
- Joint tenancy with right of survivorship
- Tenancy by the entirety
- Community property
Tenancy in Common
In a tenancy in common agreement, each owner may act independently of the others by selling or leaving their share to a new owner. Unfortunately, if your objective is to avoid probate, this will not help, as a tenancy in common property is still subject to probate.
Joint Tenancy with Right of Survivorship
Joint tenancy with right of survivorship is very common in real or financial property owned by spouses. When one owner dies, the other inherits the full ownership without having to go through probate. The two owners may not act independently but may choose together to sell or transfer ownership, breaking the joint tenancy. In the case of the death of one or more owners, the final owner has full rights to sell or transfer ownership. However, unless the owner chooses to protect the asset by putting it into a trust or another joint tenancy with right of survivorship, the asset will be subject to probate upon the owner’s death.
Tenancy by the Entirety
This type of joint property is different in that it is only for married couples or domestic partners. Both partners or tenants own the asset in its entirety, as opposed to each owning 1/2 of the asset. Probate is not necessary for this agreement as the ownership passes to the surviving tenant upon death of the other, as long as a purposeful act of the survivor did not cause it.
In many states, married couples or registered domestic partners are considered equal owners in community property. Each partner may leave their 1/2 interest to someone other than the spouse upon their death. Community property with the right of survivorship is similar, but it means that the 1/2 interest automatically goes to the surviving partner upon the other partner’s death regardless of the presence of a will that may have left their portion to another beneficiary.
When planning for the safeguarding of your assets upon your or your spouse’s death, consult an experienced estate planning lawyer in Roseville, CA. They can advise you of federal and state probate laws and can make you aware of all your options.
Thanks to Yee Law Group for their insight into estate planning and jointly owned assets.