Probate Avoidance Horror Stories

Sam’s mother Ruth was getting on in years and could no longer live alone. He and his wife Sara sold their house in California and moved in with Ruth. Several years after Sara and Sam moved in, Ruth went to her attorney to draft a will giving her son and daughter-in-law her home at her death in recognition of the fact that the care they gave her allowed her to stay in her home instead of a nursing home. She left other property to her three other children in the will. Unbeknownst to Sam, in the interim between the will being drafted and his mother’s death, his siblings had convinced her to sign a new deed giving each child joint tenancy in her home. At Ruth’s death, 10 years after the drafting of the will, Sam and Sara were shocked to discover that instead of owning the house in full simply through the will, they owned two-fifths share of the house. They were forced by the probate court to sell the house and divide the proceeds between the siblings.

Joint tenancy is one of those methods used by people to avoid probate. It can be a useful probate avoidance tool; however, it can have the unintended effect of frustrating the intent of the will. A will is just a starting point when estate planning or preparing for death. All transactions must be considered and reviewed as circumstances change.

Title to property passes outside of the will as do insurance policies, stocks and bonds, certificates of deposit and bank accounts. Being aware of the method that any type of property you own passes at your death and making provisions for that in your estate planning can prevent unintended bequests or inheritances. There is no substitute for good legal counsel when estate planning.