Legacy Assurance Plan: Joint Tenancy With Right of Survivorship | It May Be A Risky Idea if Not Used Properly

Summary: Joint tenancy with right of survivorship is a means of owning property. It can be a useful form of ownership in some situations. As a method for avoiding probate, however, this tool can create many problems. It may limit your flexibility as a homeowner to sell or refinance, it may expose your home to risk from legal judgments incurred by your joint tenant and it may create confusion regarding each person’s ownership interest. For avoiding probate, there are often better techniques, such as revocable living trusts, which can effectively avoid probate without the risk and loss of freedom.

People have lots of ideas about how best to avoid probate. Obviously, people seek a plan that is as effective as possible. They also often seek options that involve a minimum of expense and complication. Sometimes, though, just because an option is the fastest or the cheapest, it doesn’t mean that it is the best.

One example of this is the type of ownership of property known as “joint tenancy with right of survivorship” (JTWROS). There are circumstances where this can be a useful tool. Using this as a form of estate planning geared to avoid probate, however, often isn’t a good idea.

There can be many problems with this type of estate planning. First off, creating a JTWROS means that whomever you’ve formed the joint tenancy with has certain rights as soon as you create the tenancy. For example, after you’ve created your JTWROS, you have to get your joint tenant’s approval to sell or to re-finance the house.

Additionally, it creates certain risk exposure. If your joint tenant gets sued and loses, gets divorced, or has any other judgment assessed against him/her, then your home could be involved in satisfying that judgment, which could even mean a forced sale of the home!

This type of arrangements can also lead to confusion. Take, for example, the case of a woman named Molly who lived in Tennessee. Molly and her husband, James, owned a property together. Three years after James died, Molly created a JTWROS with herself and her son, Darryl, as the joint tenants. One year after she created that JTWROS, in 2010, Molly signed another deed. This one gave all of her rights to the property to Darryl Jr. (Darryl’s son.)

In 2013, Molly died. What ensued was a prolonged court battle to determine who had what legal rights to the property originally purchased by James and Molly. Did the 2010 deed mean that Darryl Jr. owned the whole property? Was the 2010 deed invalid (since Darryl Sr. didn’t sign it,) meaning that Darryl Sr. owned the whole property? Or did the father and son now share the property as co-owners?

Ultimately, the case went all the way to the Tennessee Supreme Court, which concluded that, when Molly created the 2010 deed, she indirectly and effectively ended the JTWROS. The 2010 deed transferred her rights to Darryl Jr. and meant that the two men, from that point forward, co-owned the property as what’s called “tenants in common.”

When Molly created these deeds, was this outcome what she had intended? It is impossible to say for sure. What we can say for certain is that, at best, Molly’s plans accomplished her goals but only after years of court wrangling and litigation going all the way to the Supreme Court. At worse, her home was tied up in litigation AND her plans failed to accomplish her goals. Either way, it wasn’t a positive outcome.

Other options might have been more advantageous. A living trust might have been one possible superior approach. With a properly executed living trust that had the home funded into it, Molly could have initially designated Darryl Sr. as the intended recipient of the home upon her death. If she later decided to give the home 100% to Darryl Jr., she could have made that change simply by amending her trust. If she decided to leave the home 50-50 to Darryl Sr. and Darryl Jr., she could have done that, as well. Again, it would have required only a simple amendment to her trust.

There are many ways to avoid probate. The key is to work with knowledgeable professionals and make sure that the plan you pick is the best one for you.

This article is published by the Legacy Assurance Plan and is intended for general informational purposes only. Some information may not apply to your situation. It does not, nor is it intended, to constitute legal advice. You should consult with an attorney regarding any specific questions about probate, living probate or other estate planning matters. Legacy Assurance Plan is an estate planning services-company and is not a lawyer or law firm and is not engaged in the practice of law. For more information about this and other estate planning matters visit our website at www.legacyassuranceplan.com.