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.