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What happens to jointly owned property during probate?

On Behalf of | Jan 17, 2025 | Estate Administration And Probate, Estate Planning |

When a loved one passes away, dealing with their estate can be overwhelming. One common question that arises is what happens to jointly owned property during probate. In California, some can automatically go to the surviving owner or owners without court intervention.

However, there are also a few types that may still need to go through probate. It’s important to know which types of joint ownership can avoid probate and which cannot, as this can significantly impact the estate administration process.

Joint tenancy with right of survivorship (JTWROS)

In this arrangement, each owner holds an equal share of the property. When one owner passes away, their share transfers to the surviving owners without going through the probate process. It’s important to note that property deeds must clearly state this form of ownership.

JTWROS may have implications for capital gains taxes and could potentially conflict with other estate planning documents. Make sure to talk to an attorney before establishing or modifying any joint tenancy arrangements.

Tenancy in common

With this type of joint ownership, owners can have unequal shares. Unlike JTWROS, a person’s share doesn’t automatically go to the other owners when they pass away. Instead, it becomes part of their estate and goes to their heirs as specified in their will or by state law. While the deceased owner’s share may need to go through probate, it does not affect surviving owners’ shares.

Community property

In California, community property ownership affects how assets pass through probate when one spouse dies. While the surviving spouse typically inherits the deceased spouse’s half of community property, the deceased spouse has the right to will their half to someone else.

This transfer may still require probate proceedings, depending on the value of the estate and how the deceased spouse structured it. Spouses can avoid probate by holding property as “community property with right of survivorship” or by placing assets in a living trust.

Make informed decisions

Joint ownership can be a powerful tool in estate planning, but it’s not one-size-fits-all. To fully understand what joint ownership of a property means for you and your estate, consider consulting with an attorney.

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