Avoiding probate is a common goal; many clients walk in the door with avoiding probate as a priority. We can definitely avoid probate, but wont recommend that you use jointly owned property to do it. Owning property as joint tenants with right of survivorship is fraught with problems; and, there are other ways to avoid probate.
The best way to avoid probate is with a fully funded revocable living trust. With the help of a qualified estate planning attorney, you design, draft, execute, and fund the trust. The title of your assets (excepting qualified assets) is changed from your individual name or from joint names to the name of your trust.
Qualified assets are your tax deferred retirement assets; changing the tile of qualified assets accelerates all of the income tax. Yikes! Dont do that. Your estate planning attorney will give you specific instruction on how to fund your assets into your trust.
Regarding retirement assets, you do name your trust as the beneficiary of your retirement accounts. This doesnt change the title and it doesnt accelerate income tax.
The title of life insurance policies can be transferred to the trust; and, be sure to change the designated beneficiary of the policy to your trust, as well.
Jointly owned property is NOT the best way to avoid probate because:
- It only avoids probate on the first death. Probate is guaranteed at the second death, if theres not good planning.
- Joint property often disinherits children and always disinherits children from a previous relationship.
- Jointly owned property can be seized by your joint owners creditors or divorcing spouse.
- Its a loss of control.
- Your joint owner can force sale of the property.
- Your joint owner could take all of the assets out of the account; he or she owns 100% of the total assets, as do you
Wanting to avoid probate is completely normal; but, avoid probate with the help of a qualified estate planning attorney, not jointly owned property.