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Do I have to go to probate court if my husband and I are joint tenants on property?

Glendale, CA |

My husband and I are Joint Tenants on rental property and our primary residence. Would I need to go through probate to transfer everything into my name? I would like to transfer everything into my son's name. How should I proceed?

Thank you in advance.

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Attorney answers 5

Best Answer
Posted

Joint tenancy is a probate substitute so you avoid probate. All that needs to be done to clear title is file an affidavit death of joint tenant and submit a proper PCOR when recording the deed. Is your husband living. Holding the property as community property is rights of survivorship is better, and better yet transferring the property to a trust. That said, it sounds like your husband has passed away. If so, file the affidavit death of joint tenant.

As to your planning now, see an estate planning attorney. You want to put your interest in a trust and name your son as the beneficiary.

The general advice above does not constitute an attorney-client relationship: you haven't hired me or my firm or given me confidential information by posting on this public forum, and my answer on this public forum does not constitute attorney-client advice. IRS Circular 230 Disclosure: In order to comply with requirements imposed by the Internal Revenue Service, we inform you that any U.S. tax advice contained in this communication (including any attachments) is not intended to be used, and cannot be used, for the purpose of (i) avoiding penalties under the Internal Revenue Code or (ii) promoting, marketing, or recommending to another party any transaction or matter addressed herein. While I am licensed to practice in New York and California, I do not actively practice in New York. Regardless, nothing said should be deemed an opinion of law of any state. All readers need to do their own research or pay an attorney for a legal opinion if one is necessary or desired.

Posted

You do not have to go to probate if you hold title as joint tenants. However, joint tenancy is not the best way for husbands and wives to hold title because there are tax consequences upon the first person to die. You also mention you want to transfer everything into your son's name. There are aspects of that type of lifetime transfer that also have drawbacks. Your best bet would be to meet with an estate planning attorney, discuss your goals, and have an estate plan drawn up to meet your needs and avoid the consequences and pitfalls that may occur under the facts you have presented.

Posted

If your husband has died and you are the surviving joint tenant on a piece of real estate that is titled as joint tenants with right of survivorship you do not have to go through probate for those assets. There could be other assets in his name alone that would warrant probate. Regarding your other statement about giving away property to your son, you need the advice of an attorney to advise you on the various implications of doing so, as they are numerous.

This is not legal advice nor intended to create an attorney-client relationship. The information provided here is informational in nature only. This attorney may not be licensed in the jurisdiction which you have a question about so the answer could be only general in nature. Visit Steve Zelinger's website: http://www.stevenzelinger.com/

Posted

I agree with both answers. If your husband has passed away, the two properties are not subject to probate because of the way title is held. However, if you are asking for future reference and want to make sure your son is provided for, you should work with an estate planning attorney who can analyse all of your goals and potential tax consequences and help you set everything up for you.

Please note that I am answering this question as a service through Avvo but not as your attorney and no attorney-client relationship is established by this posting. An attorney-client relationship can only be established through signing a Fee Agreement and paying the necessary advanced fees.

Posted

Holding joint title to a piece of property is not the only criteria for needing to go through probate on your husbands estate. Also, it depends on how the property was specifically titled. But, I do no trecommend that you transfer title to your son without doing it through a properly established estate plan. You may be incurring tax problems by transfer of the property to him right now.

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