Ask the Probate Judge—Joint Tenancy & Probate
Rudd, appeared July 31, 2003, Albuquerque Journal, Business Outlook
Reprinted with permission
Editor's note: This column may not be quoted or reproduced in whole or part without express written permission of the author.
Q: My father passed away 22 years ago and everything went to my mom. My mom remarried in 1986 and one month before she married she created her will with a lawyer. She died last year in New Mexico. We recently located the lawyer and received a copy of the will. I'm named as her personal executor. All of her money and assets are in joint tenancy accounts with her husband. I was wondering if my family and I should pursue a lawsuit against her husband? He has not been willing to work with us on any of Mom's belongings, money, or property, some of which were hers before her marriage.
Your question illustrates an important point about holding property in joint tenancy. Upon the death of one owner, property held in joint tenancy passes automatically to the surviving joint tenant, no matter what the will says.
If everything your mother owned was held jointly with her husband, the property passed automatically to him at her death. If the will devised specific personal effects to her children, then the children would be entitled to those.
This result is not unique to second marriages. A parent often adds an adult child's name as a joint tenant onto accounts or the deed to the house. Suppose that parent's will says, "I devise my property in equal shares to my three children." Who owns the property when the parent dies? The child who is the surviving joint tenant. The other two children legally receive nothing. The joint tenancy designation "trumps" any devises made in a will.
Readers beware: before adding a person as a joint tenant to your house or accounts, make sure you understand what effect adding the person will have. If you intend for your spouse or one child to receive all of your property at your death, then adding the spouse's or child's name to all of your property accomplishes this. But if you intend that all of your children receive some share of your property, adding a spouse's or one child's name to the property will not accomplish this goal.
Q: I am an only child. After my father died, my mother made a deed to her house from herself to herself and me as joint tenants. When she dies, will I have to probate the house? A.A., Albuquerque
Assuming you survive your mother, the house should pass to you automatically as the surviving joint tenant without a probate. Your mother should, however, record your father's death certificate in the county clerk's office in the county where the house is located.
Parents who add the name of a child to an account or house as a joint tenant may not realize this can be dangerous. The joint tenancy designation means the child can withdraw all of the assets from the account without the parents' permission. Also, if the child is sued or goes bankrupt, the parents' account or home can be attached to pay the child's debts. The joint tenancy property can also be attached to pay state and federal tax liens against the child.
Joint tenancies can avoid probate, but individuals should also recognize the possible drawbacks of joint tenancy designations.