Can I use a joint
tenancy to avoid probate in Utah?
Yes, but except for a married couple, it is generally a risky way to
avoid probate. Even for a married couple, there may be a better
way to avoid probate in Utah.
Holding property
under a joint tenancy (sometimes called a joint tenancy with
rights of survivorship or "JTWROS") is an idea that has gained
popularity in some circles as a way to avoid probate. But
holding property in Utah under a joint tenancy with anyone other than
your husband or wife has risks that substantially outweigh the benefits
involved in avoiding probate. If you are concerned with
avoiding probate, you should consult with a Utah estate planning
attorney to discuss other, safer methods of avoiding probate.

A
joint tenancy is the most common way for married couples to own
property in Utah. Under a joint tenancy, when one spouse
dies,
the surviving spouse automatically takes ownership of the entire
property. No probate is required when the first spouse dies.
But upon the death of the surviving spouse, a probate action
will
still be required in order to transfer or sell the property.
Creating
a joint tenancy with anyone other than your husband or wife presents
potential problems that can outweigh the benefits of avoiding probate.
By taking property owned solely by you and putting it into a
joint tenancy, you are giving away part ownership in the property.
Your joint tenant, as a part owner, can sell or mortgage the
interest in the property. The joint tenant may also
unintentionally lose the interest in the property in a divorce,
lawsuit, or bankruptcy. Giving away an interest in your
property
by creating a joint tenancy may also trigger a gift tax.
Holding
property in joint tenancy may help you avoid probate, but it does so at
the risk of undermining your other estate planning intentions.
Consider the situation of a married couple, each of whom have
children from a previous marriage. The husband may intend to
pass
his share of the property to his children, and the wife may intend to
pass her share of the property to her children. Suppose that
the
husband dies first, his children would receive no interest in the
property, regardless of what his will might say. The wife
would
now be the sole owner of the property.
To learn more about methods of safely avoiding probate in Utah,
contact us today to
schedule an initial consultation with Utah
estate
planning attorney Stephen Howard.
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