How to Avoid Probate with Joint Ownership

In many instances, a married couple will own property together, which is known as joint property. What happens to this married property when one person dies? Some property may go through the probate process when their first owner dies, but there are a number of ways to avoid the probate process with joint property.

Types of Joint Ownership Available

One of the ways to avoid the probate process is for both owners to have their names on a title. This will indicate that both parties are equal owners of the property with no additional documentation needed.

Joint ownership can be used in a number of ways to avoid the probate process, including:

• Joint tenancy with right of survivorship. When one of the owners passes away, the property automatically passes to the other owner, surpassing the probate process. This kind of joint ownership is best done when acquiring property that involves title, such as vehicles, houses, bank accounts, and securities.
• Tenancy by the entirety. A married couple can assume ownership by joint tenancy by the sheer fact of being married.
• Community property with right of survivorship. For those that are married in community property states, this will allow the other spouse to access the property in the event that the other dies. Transferring the title is a simple process.

Many times, gaining access to this property involves filling out a form and submitting this form with the death certificate to wherever the ownership records of the property are kept. In Texas, any couple that seeks to establish joint tenancy must sign a separate agreement that puts the possession of their property in their joint tenant's hands.

While joint tenancy seems like a great option to avoid the probate process, there are some reasons why it should not be used as a way to transfer all property to another person outside of probate. When property is put into joint tenancy, the holder can use their ownership of the property in any way they see fit, can lose this property in a divorce, may need to have a gift tax filed with the state, and may cause serious disputes between family members following a death.

One of the best ways to determine how property that is jointly owned can be transferred without probate is by figuring out what property is considered joint and how it should be divided in the event of death. Speaking with an attorney can help you determine the best way to establish joint ownership and change any titles necessary to avoid the probate process.