I often meet people who, when they learn I’m an estate attorney, tell me:
"I don’t need a trust to avoid probate. All I really own is my home, and I’ve already deeded the property to myself and my children jointly. So, when I die, my home will automatically pass to my children.”
They typically say it with great pride and confidence, having usually prepared the deed themselves.
Many times, over the years, however, I’ve had to probate the homestead property of a descendant in this exact situation because the deed had been prepared wrong. Here’s what I mean.
Property owned as “joint tenants with right of survivorship” passes to the surviving owner(s) automatically upon the death of a joint owner; however, property owned as “joint tenants in common” does not.
And if neither phrase is included in the deed, it’s assumed the ownership is as “tenants in common” (unless the owners are husband and wife). So, when one owner (Mom) dies, her specific share doesn’t automatically pass to surviving owners (children); it has to be probated. Yuck!
Isn’t it amazing? One little phrase makes such a difference. That’s what I mean when I say, “Words Mean Things!” The law is full of potential “traps” just like this, and if you don’t know what you’re doing, you can really get yourself (or your family) into trouble.
If you do decide, however, to prepare your own deed in an effort to avoid probate… please, please, please use the right words!
Or if I can help you avoid probate by preparing your legal documents, please contact me at (813) 244-7758 or Ross@RossSpanoLaw.com.