In California, there are some very good reasons for avoiding the probate administration process. My three favorite reasons include (i) the cost; (ii) the time involved; and (iii) the public nature of the proceedings. For most estates, probate administration costs generally run from four to eight percent of the gross value of the estate and frequently take at least eight months to complete. To avoid these problems, some individuals engaged in what I affectionately refer to as ‘backyard’ estate planning. With respect to many assets, this involves using joint tenancy, which avoids the probate administration system (you can find a list of other probate avoidance devices here). Often I am asked whether this is a reasonable solution to avoid probate but avoid the cost of preparing an estate plan. In most circumstances, my answer to the question is a resounding “no”.
Under California law, joint tenancy includes what is referred to as the “right of survivorship” which means that when one tenant passes away, the asset transfers to the surviving tenant by operation of law. With a bank account, a surviving tenant can present a death certificate to the financial institution and remove the surviving tenant from the joint tenancy account. With real estate, the surviving tenant executes a form known as an affidavit of death of joint tenant which then places title solely in the name of the survivor. While these devices can work well with domestic partners or married couples (who are also bound by family law), they often fail when used with other parties such as children. In fact, using joint tenancy in these situations often creates more problems than it solves.
With respect to financial accounts, the decision to place another person on the account as a joint tenant grants an ownership interest in the entire account to the new joint tenant. The most obvious risk is that the new joint tenant has ownership over the entire account, and can clean it out almost immediately. While the original owner would have a legal claim against the new joint tenant under these circumstances, often you have to sue the joint tenant and find the missing assets before they will be returned (which is frequently challenging if not impossible in many cases). With respect to real estate, making such a transfer, unless accompanied by separate agreement, is frequently considered an irrevocable transfer. What this means is that if the original owner changes his or her mind about disposition, or wants to sell or refinance the property, the original owner will not be able to do so without the consent of the new tenant.