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Does Having a Joint Account With My Spouse Help Avoid Probate If One of Us Passes Away?

Joints Account Subject to ProbateIt should be noted that there are numerous assets that can be deemed testamentary substitutes, meaning that due to the nature of ownership or the beneficiary scheme, these items may not be covered under the terms of the will. For the most part, if an asset is owned exclusively by the testator-decedent (person who died) and there is no named beneficiary, this asset will fall under the purview of a Last Will and Testament, and ultimately the Surrogate’s Court of the county in which the decedent was domiciled. These assets will have to go through the process known as probate.

Some examples of assets that may not be covered under a Will would include financial accounts that are owned jointly (i.e. joint banking or checking account). Furthermore, accounts that are commonly known as POD (payable on death accounts) where a beneficiary will become the titled owner upon death would not be covered under the terms of a will.

Life insurance policies with named beneficiaries are another category of estate assets that would not be covered under the Will or the purview of the Court. It is important to name a beneficiary under a Life Insurance policy if you do not want the proceeds from the policy to be held up during the probate process.

When a house is owned by a husband and wife (tenants by the entirety) or when two persons own a home as joint tenants with right of survivorship, when the first joint tenant or tenant by the entirety dies, the surviving tenant receives the property by operation of law without having to go through the provisions of the will or Surrogate’s Court. It is important to note the distinction between joint tenants and tenants in common, with the latter needing the probate process in the event of the tenants in common dies. In that case, the tenant’s heirs at law or beneficiaries according to a will would take that respective portion of real property.

Just as it applies to joint ownership of a house, if two spouses own a joint bank account or other financial account together, when one spouse passes, the surviving spouse becomes the full titled owner by operation of law without having to go through the Surrogate’s Court.

Should you require an experienced estate attorney, please contact The Law Offices of Michael W. Alpert at (516) 280-7288 or