Tag Archives: joint tenancy

What Should I Do About Assets Not Held in Trust?

pot of goldDear Liza: My husband and I married in our 60’s and managed our affairs as “yours, mine and ours”.  He held his assets in accounts named as his trust. All combined assets were joint accounts, joint tenancy , etc. My accounts are either in my IRA or individual bank accounts in my name only. We contributed an equal amount to our joint accounts every month to pay living expenses. His daughters are trustees of his trust and sole beneficiaries. My husband died last week after a long illness. Do I need to go to probate for the assets NOT named by his trust? I’m sorry about your husband. You won’t need to open a probate if the total value of the assets in his name and not held by the trust are below your state’s small estate’s threshold. In California, where I practice, that limit is $150,000, but it differs state-by-state. To find out your state’s small estate threshold, click here. One important thing to remember is that this total doesn’t include the value of any assets that are held in joint tenancy, those assets pass to the surviving joint tenant automatically, because that’s what joint tenancy means–the surviving joint tenant owns the entire asset, whether that’s a house or a bank account. This total also doesn’t include any assets with a beneficiary designation, such as life insurance or a payable on death account. So, if your husband had only a few small accounts held in his own name that didn’t have a beneficiary or weren’t held in joint tenancy with you, you won’t have to open a probate to transfer them.  You will, though, need to follow your state’s rules for small estates– in California, after 40 days, there’s a simple one-page declaration that the executor can sign to transfer these assets.  If your husband had a pour-over Will in addition to his trust (which he should have had), these assets would pass to the trust’s beneficiaries, his daughters.

Stuff in the House: Tangible Personal Property

Dear Liza: My mother is 79 years old and is on social security.  She and her brother own a house together.  At this point, I really don’t care if her brother has control of the property.  But I do care if the contents of the house are legally given to him.  Does he have rights to the contents of the furniture in the house?   Does my mother need a Will and would that Will prevent her estate from going into probate?   Your mother’s furniture and furnishings are what’s called “tangible personal property.” This is lawyer-speak for all the stuff in her house: pots, pans, rubber bands, and the couch. That property will pass to you and your siblings if your mother executes a simple Will and gives her tangible personal property and any other assets she owns to her children.  If the house is owned in joint tenancy, the surviving joint tenant (your uncle) would own the property upon your mother’s death, by what’s called “right of survivorship.”  The house passes to him because of the way he and your mother owned it.  But the tangibles, and anything else your mother owned other than the house, would pass to her kids via her Will.  If all she really has at this point are those tangibles, no probate would be required because states exclude small estates from the necessity of a probate proceeding.  Nolo offers a simple Will that would do the trick.