Can probate be avoided by the use of joint tenancy?
Yes. Joint tenancy property avoids probate upon the death of the first spouse. However, when the second spouse dies, all of the assets and the property must go through probate unless they are contained in a living trust. There can also be serious income tax consequences with the use or joint tenancy as a probate avoidance technique.
Yes–and no. Joint tenancy can delay probate, but it cannot avoid probate altogether. The probate process (but not necessarily the cost) can be avoided only on the first to die if you hold your assets in joint tenancy (for example, between husband and wife) or, in some community property state, if you have executed a Community Property Agreement. However, when the second spouse dies, all of the assets in the estate must go through the probate process. Consequently, all that you have really accomplished with joint tenancy is to delay the inevitable—ultimately causing your heirs to go through the agonizing probate process. In addition, by holding assets in joint tenancy, you lose half of the stepped up valuation when the first spouse dies. You have also forfeited one of your $600,000.00 federal estate tax equivalent exemptions. If you decide that the way to avoid probate is to go into joint tenancy with your children, any such assets in joint tenancy are subject to any lawsuits to whic
