Does a Joint Tenancy Bypass Probate?

By Maggie Lourdes

A joint tenancy is a form of property ownership in which two or more people own the assets together, including the right of survivorship. When a joint tenant dies, the jointly held asset passes to his surviving joint tenant, bypassing probate court. Many types of assets may be held as joint tenancies, such as real estate assets, bank accounts, and stocks and bonds.

Right of Survivorship

The survivorship aspect of a joint tenancy differs from other forms of co-ownership, in that when a joint tenant dies, her surviving joint tenant becomes the full owner of the jointly held property. But when two people own a home as tenants in common, the co-tenants do not have a right of survivorship. If one co-tenant dies, however, his surviving co-tenant does not automatically take the entire property. A co-tenant may leave his property to someone other than his co-tenant, for example. Generally, a tenancy in common must be probated.

Probate vs. Nonprobate

Joint tenancies differ from assets left via a will in that joint tenants actually own the joint property during their lifetimes. Assets that pass by wills do not create property ownership rights until the will maker dies. Probate courts must appoint a personal representative, who will convey the decedents' estates to heirs via a court order. Revocable living trusts also bypass probate. A trust is a legal agreement created during the trust maker's lifetime, and allows a person to retain control of his property during his lifetime, avoiding probate after death.

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Joint Financial Accounts

Joint tenants commonly hold financial accounts together. When a joint tenant dies, a surviving joint tenant must provide a death certificate to the financial institution so that he can obtain full control of the funds. Adding a joint tenant usually entails completing a simple form. Removing a joint owner, however, typically requires his consent. Joint accounts also may be reachable to satisfy judgments of all joint tenants. Therefore, individuals should carefully consider the risks and benefits of adding joint tenants to financial accounts.

Joint Real Estate

To add a joint tenant to a real estate title, a property deed must be completed, but adding a joint tenant generally does not require her signature to a deed. However, joint tenants must sign deeds, to remove their names from a property title. A deed is recorded at the register of deeds in the county in which the property is located. When a joint tenant dies, a death certificate and a new deed is recorded, thus removing the decedent's name. Statutes governing requirements for property deeds vary by state law. An online legal website can help ensure that a property deed meets various state requirements.

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Nebraska Divorce & Joint Tenancy Laws
 

References

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Meaning of the Legal Term "Rights of Survivorship"

The term, “Rights of survivorship,” refers to a form of property ownership where two or more people -- often a husband and wife -- acquire property together with provisions in their deed that upon the death of one of them, the survivor automatically acquires the deceased co-owner's share. When property passes by survivorship, there is no need to probate a will to transfer ownership.

Inheritance Rights After a Death

People's inheritance rights vary depending on the estate planning tools used by the decedent, or the person who died. Some estate planning techniques require inheritances to pass through probate courts. Estate planning can also be crafted to avoid probate court. Moreover, some people do not make any estate plans at all. In these situations, state law identifies a decedent's heirs and outlines their inheritance rights.

Joint Tenancy and Divorce in California

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