April 18, 2017

In general, probate refers to the legal proceedings by which your assets are analyzed and then distributed by the court. Everything that you own, including your land is distributed according to the New Jersey intestate statutes. It can take up to one year for a probate case to make its way through the court system and it can also be extremely expensive as a result of this delay and the costs of an estate attorney. Probate is also a very public process which is one of the primary reasons that if you intend to pass on real estate to your loved ones, you should do so by using a will, trust, or other estate planning tool.

Consulting with a lawyer sooner rather than later will give you a broad overview of all the things you need to consider in the estate planning process for your real estate. If you have a vacation property or a primary home, the most important question to ask is whether or not it is designated as tenancy-in-common or joint tenancy. In a joint tenancy situation, two individuals own the property with equal shares. This means that if one person passes away, the ownership of the property is automatically transferred to the other owner without a will. This is classified as right of survivorship. All that is necessary in order to retain ownership is to get a copy of the death certificate recorded for the deceased joint tenant.

Common tenancy, on the other hand, means that two or more individuals own a property in varying portions. Joint tenancy means that equal shares are maintained by individuals at the same time but common tenancy can occur where owners are added or removed from the property’s co-ownership.

Tenants-in-common do not have survivorship rights unless the deceased’s will classifies that his or her interest in such a property is to be divided amongst surviving owners. Otherwise the share of the property goes to his or her real estate and a will can direct where that share will go. After an individual inherits a property, he or she is subject to whatever mortgage exists. That person needs to put together a will as quickly as possible in the event that he or she were to become incapacitated or pass away. The heir can then choose to sell or to keep the property.