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Joint tenancy is a form of property ownership among two or more people where title to the property passes automatically upon death to the survivor. 

Joint tenancy may seem the perfect low-cost alternative to estate planning and probate.  Indeed, joint tenancy is the most popular form of home ownership in Utah. 

However, joint tenancy can present special problems in estate administration.  It does not always dovetail well with a person’s overall estate plan.  Also, joint tenancy is not always the ideal mechanism for reducing estate tax or benefitting from stepped-up basis for income tax purposes. 

Occasionally, older adults change asset titles to add one of their children as joint tenants.  In doing so they believe they are facilitating both asset management in the event of their incapacity, and easy transfer of title in the event of their death.  THAT IS ALMOST ALWAYS THE WRONG APPROACH!  It frequently leads to unanticipated consequences.  Among other things, parents almost always wishes the joint tenant child to equally divide title to the property following the parent’s death.  The child, however, is not legally obligated to do so, and if he/she refuses, such refusal frustrates the parent’s wishes, and leaves the other children out — often leading to litigation. 

Also, while the death of one joint tenant automatically passes title to the survivor “by operation of law”, that is only in the theoretical sense.  In actuality, county recorder offices do not automatically update the public records to reflect the death of joint tenants.  That obligation falls on the surviving property owner.  Accordingly, the surviving joint tenant must prepare and file (at the county recorder’s office) a signed and notarized “Affidavit of Survivorship” along with a certified copy of the Death Certificate of the deceased joint tenant.  We routinely assist clients in preparing and filing that Affidavit. 

We strongly recommend that property owners and account holders consult us before changing title of any asset to joint tenancy.  Our experience with anticipating and resolving the problems can save a great deal of inconvenience and expense later on.