Robertarter said:
What is the name of your state? Nevada and California. My wife and I hold several real estate properties in California and Nevada under Joint Tenants with rights of survivorship. We also have several financial accounts in the same form of ownership. If my wife executed a will without my knowledge leaving all of her property to our daughter, would not the Joint Tenants form of ownership take precedence over the will by operation of law?
First off, any property held at JTROS doesn't go through the probate process -- and soon as one joint tenant dies, the decedent's share is immediately vested in the other joint tenant(s). The decendent CAN'T will away and JTROS property, because it is not part of the decendent's estate -- the property immediately transfers to the other joint tenant(s).
Secondly, even if, for example, your wife severed the joint tenancy and converted the property ownership to (what she thought was) tenants in common and then tried to will away her half of the property, since both California and Nevada are community property states, you could demand your "elective share" of the community property, regardless of what the will says (generally, in a CP situation, the surviving spouse has a choice between following the will or taking an elective share, whichever works out better). So, even if she willed away her half of the CP, you could demand that you get 1/2 of her half of the CP before the will distributes the rest of her estate.
Now, of course that assumes that the property is really CP, etc. You would want to talk with an attorney to make sure -- but that's the general rule.
It sounds like you might be suspicious that your wife might do something -- but if that is not the case, if all is well between the two of you, you might want to consider retitling your CA property as community property with ROS -- get's you the property without going through probate, with JTROS, but you get a step-up in basis like tenants in common. It's a pretty good deal for CP in CA... Talk to your lawyer about it.
