Legal Question in Wills and Trusts in Maine

Re: Joint Tenancy Deeds

As others have stated in their responses, the simple answer to your question is "no." This week I examined a deed which a lady thought she held her interest with a "significant other" in joint tenancy, but in reality it was not in joint tenancy but in tenancy in common. Therefore she will receive only a 50% interest in the home, not the entire home, and his children receive the other 50% now that he has passed away. Therefore, it is vital to verify that the deed is in fact in joint tenancy with right of survivorship, not simply to husband and wife. Have it checked to make sure.

A bigger question looms that is not in your request. What if both of you pass away, say in a common accident? What happens then to your estate? If the houses are in joint tenancy, and you both decease, there will be a probate, (probably also a probate in Maine, so two probate cases) and controversy or disputes depending on what other estate documents you have.

Second point: What if one of you becomes incapacitated through an accident or illness, but is still alive and you are now unable to live in one or both of these homes. Have you made provision for that in your estate plan? How could the other convey the houses without the signature of the incapacitated spouse? There are other estate issues that may exist for you. Having properties in joint tenancy is one of the pitfalls many people get into in their estate plan. There are alternatives and easy soultions to these problems.

If you want a free copy of my audio CD, "Your Estate Plan," you may request it by calling 480.835.1500. There is no obligation, we just need your mailing address to send it.

Best regards,

James D. Jenkins

Re: Joint Tenancy Deeds

There is always the chance that an adult child who is unhappy with your estate plan that favors a second spouse will sue. However, such suits are rarely successful unless there is some clear evidence that the second spouse used undue influence to procure the asset. In the context of joint tenancy, that is very difficult to show unless you are ill, not of sound mind and the transfer from you to you and your spouse in joint tenancy is on the eve of your passing. So, since your question asked if your existing joint tenancy is safe from challenge, it most likely is safe.

Re: Joint Tenancy Deeds

If the deeds to the 2 properties state that title to the properties are in you and your spouse as "joint tenants with right of survivorship," and those deeds were properly made and executed, then upon the death of one of the joint tenants, the surviving joint tenant is automatically, by operation of law, the sole owner of the properties, and all that the survivor must do, is to record a copy of the death certificate in the county where the property is located (or with whoever keeps land records). This ownership by the survivor happens without regard to any Will or other document and the children cannot claim an interest credibly.