QUESTION:

My wife and I own our home as joint tenants. Will this avoid probate in the event that something should happen to one, or both of us. Additionally, if one of us becomes incapacitated, will this restrict the others ability to control the property and/or sell it?

ANSWER:

It seems as if most married couples choose this route, but it has many negative implications and restricts what can be done with the property should the unexpected happen. For instance, if you or your spouse become incapacitated, just because you own the house as joint tenants will not give the other spouse the right to sign for the incapacitated spouse. Instead, you would have to go to court and have a conservator appointed. This can become costly and time consuming.

Additionally, while probate will not be necessary once the first spouse dies in your situation, eventually it is likely that the property will have to be probated later on down the line on the death of the second spouse.

The way to avoid these problems is to get a living trust completed before any incapacity occurs with either spouse. The house would be funded into the trust, and a durable power of attorney would be included which would enable one spouse to sign for the incapacitated spouse, thus easing your ability to transfer or otherwise control the property. The living trust will give you peace of mind and put you in control by ensuring flexibility in controlling your house and other property in your estate.

For more information, you can reach us at 1-800-8-IMPACT

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