Can probate be avoided?
Yes, fortunately probate can be avoided. As already discussed, probate proceedings can be avoided by titling property with someone else in joint tenancy. Such property will be transferred to the surviving joint tenant probate free. Because joint tenancy property passes probate free, many individuals mistakenly believe they do not need further planning if everything is titled in joint tenancy. But as discussed above, joint tenancy can result in property passing to unintended heirs, risks unforeseen tax consequences, and can result in loss of assets to lawsuits and other misfortunes.
Furthermore, an estate plan that relies only on joint tenancy ownership fails to provide any protection if one or both joint tenants become disabled by illness or accident. For example, if a husband and wife own property as joint tenants and the husband suffers a stroke, it may be legally difficult or impossible for the wife to make the decisions necessary to handle the couple’s property without petitioning the court to be appointed the legal guardian of the disabled husband. This is a major pitfall of joint tenancy ownership that many couples unfortunately fail to anticipate.
In some community property states, probate can also be avoided for married couples who title their property as marital property so that it passes probate free to the surviving spouse. Again, this provides no protection if one or both spouses become disabled and does not provide a mechanism to transfer assets to the next generation at the death of the second spouse.