A client is seeking to establish a will and wants to ensure that their spouse receives all their property upon their death, and then, upon the spouse's death, the remaining property passes to their children. The client also wants to avoid probate if possible. Which type of estate planning instrument or ownership structure would best achieve these goals?
- ATenancy in Common
- BFee Simple Defeasible
- CLife Estate
- DJoint Tenancy with Right of Survivorship
Show answer & explanationAnswer & explanation
Correct answer: D. Joint Tenancy with Right of Survivorship
Joint Tenancy with Right of Survivorship (JTWROS) allows property to pass directly to the surviving joint tenant(s) outside of probate, fulfilling the first part of the client's goal (spouse inheriting). While not directly addressing the children's inheritance after the spouse, it's the best option for the immediate transfer to the spouse and avoiding probate for that transfer. To fully achieve the children's inheritance, a trust would be needed in conjunction with JTWROS, or the spouse's will would direct the property.
Why the other options are wrong
- A. Tenancy in common allows property to pass by will or intestacy, not automatically to survivors, meaning it would go through probate.
- B. Fee simple defeasible is an estate with conditions, not primarily an estate planning or probate avoidance mechanism for survivors.
- C. A life estate grants use for life but doesn't typically avoid probate for the remainder interest and isn't the most direct way to pass 'all' property.
Joint Tenancy with Right of Survivorship (JTWROS)
A form of co-ownership where two or more individuals hold an undivided interest in property, and upon the death of one owner, their interest automatically passes to the surviving owner(s).
- Avoids probate for the joint tenancy asset.
- Requires the 'four unities': Possession, Interest, Time, Title.
- Can be severed by one joint tenant during their lifetime.
Memory trick: Concurrent ownership can be Joint or Common, but only Joint has a Right of Survivorship.