Probate & Joint Tenancy

Dear Len & Rosie,

My grandmother died almost a year ago and willed each of her grandchildren and great grandchildren $500. My aunt and uncle were on the title of the house along with my grandmother. They were also named executors of the estate. All the grandkids are wanting their inheritance and are being told that there is no money. The house was just rented this month and will be bringing in monthly income.

Darla

Dear Darla,

Whether or not you’re ever going to see your modest inheritance depends not only on the terms of your grandmother’s will, but also whether or not she actually owned anything subject to probate. Your grandmother created an estate plan, but there’s a good chance she didn’t really understand how it worked.

Your grandmother’s home, held in joint tenancy with her children, was not subject to probate, and was not subject to the terms of her will. When a joint tenant dies, the surviving joint tenants own the property automatically. All your aunt and uncle had to do to clear title was to submit your grandmother’s death certificate with an affidavit of death of joint tenant to the county recorder, together with the property tax paperwork needed to avoid a reassessment under Propositions 13 and 58.

What your grandmother did by adding your aunt and uncle to her deed was to save thousands of dollars in probate attorney fees, as well as the delays of probate. But she did this at the cost of removing her home from her estate plan. The only assets that can be used to fulfill the $500 gifts your grandmother wanted to make are assets that were titled solely in her name upon her death. Assets in a trust, joint tenancy assets, and assets with pay-on-death beneficiaries are not disposed of by your grandmother’s will.

Chances are, she didn’t have all that much besides her home. If she had more than $150,000 in her name alone, then her will would have to be probated, and you would have received a notice of the petition to admit the will to probate. If she did less than $150,000 in accounts solely in her name, then these accounts could have been collected using small estate declarations under Probate Code section 13101, but these declarations should have been signed by all of the recipients of your grandmother’s will, yourself included.

If there is money out there, you could sue your aunt and uncle if you can prove that they took the estate’s money for themselves and didn’t use it all to pay off your grandmother’s debts. But it’s only $500, and if her bank accounts were also in joint tenancy there’s nothing to fight over except for the furniture. Consider this as a lesson.

Len & Rosie