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By: Scott Grossman on June 18th, 2018

Should I inherit my father’s property if he held in joint tenancy with his second wife? Their trust says I get all their property when they have both died.

No, not unless the second wife adopted you as one of her children.  This is a really common and, speaking frankly, dumb mistake.  Creating a trust only gets you half way to having a complete estate plan.  The other half is funding the trust with the property that belongs inside.  Parents are setting their children up for failure when they don’t bother to fund their own trust.

Assets held in joint tenancy passes to the surviving joint tenant.  If your father holds property in joint tenancy with his second wife then she’s the one who has title when he dies.  Assuming she doesn’t put it into the trust, then when she dies it’s going to go through probate, and will pass by the laws of intestate succession.  That means the property will pass to her children and if she doesn’t have any children then will pass along her bloodlines.  If you haven’t been adopted then you are not going to get that property.

That’s not to say that there aren’t some situations where you might have a shot at getting the assets back through trust litigation.  If assets had been titled in the trust and was taken out of the trust to be put in some kind of multiparty account then you may have a successful argument that the property was always intended to be trust property and some mistake was made with title.

Joint Tenancy (noun):

The ownership of an estate or property jointly by two or more parties. The portion of each passing to the other owners on death.

Estate (noun):

An estate includes the things that a person owns. The things left by someone who has died can be distributed based on a Will, Trust, or Intestate laws. Estates have to be administered in the Probate Court if the estate meets certain criteria. See our Infographic on The Probate Process.