If the decedent’s assets are held in a joint tenancy, there could be more details to cover, and it can be a little more confusing; however, using a real estate agent and/or a probate attorney can help explain a lot of the details behind joint tenancy in a probate situation. First of all, you want to examine the deeds to the real estate and any other ownership documents to verify that it is actually held in joint tenancy. Joint tenancy does not avoid real estate taxes even though it is excluded from probate, but it is included in the decedent’s taxable estate.

Many real estate brokers and even stockbrokers or bank officials recommend joint tenancy for ownership, specifically for married couples who prefer joint ownership to avoid probate. Oftentimes, aging parents or the elderly can place bank accounts and real estate in joint tenancy with a trusted friend or relative for this purpose. This is a great way to avoid probate in the future, and the moment the co-owner passes away, his or her interest in the property shifts to the surviving joint tenant.

One thing to note is that a deceased joint tenant’s creditors have no rights against the joint tenancy’s property. “Property held in joint tenancy doesn’t pass under the provisions of the decedent’s will, nor does it go to the decedent’s heirs if the decedent dies without a will.”

Even though this makes things simpler, must complete a few formalities to remove the decedent’s name from the record of ownership or title. The property will naturally be transferred as part of the person’s estate and only will be formal probate if there is no surviving spouse, domestic partner, or joint tenancy.

Clear title to real property in joint tenancy

To do this, you want to prepare an affidavit. This is also called the Death of Joint Tenant. This states that the decedent named on the death certificate is the same person named on the property’s original deed as a joint tenant. (If you’re dealing with the estate of the last joint tenant to die, but the interest of predeceased joint tenants were never formally ended, you must first terminate the interest of the first joint tenant so that the record will show title held solely in the name of the last surviving joint tenant) – Nolo

You want to fill out the affidavit as thoroughly as possible. After that, you’ll need to attach a certified copy of the death certificate, fill out the preliminary change of ownership report and record the affidavit with the county recorder.

When filling out the preliminary change of ownership, you may also need to fill out a supplement to the form if the property is transferred from parent to child.

For more information on a joint tenancy with probate and real estate or to answer any questions, you may have about probate real estate in California contact my office today.