Holding trust property in joint tenancy

Can it be done?  Can property be held in trust AND in joint tenancy?  Your lawyer told you it can’t be done, right?  Tell them to review California Civil Code section 683(a).

683. (a) A joint interest is one owned by two or more persons in
equal shares, by a title created by a single will or transfer, when
expressly declared in the will or transfer to be a joint tenancy, or
by transfer from a sole owner to himself or herself and others, or
from tenants in common or joint tenants to themselves or some of
them, or to themselves or any of them and others, or from a husband
and wife, when holding title as community property or otherwise to
themselves or to themselves and others or to one of them and to
another or others, when expressly declared in the transfer to be a
joint tenancy, or when granted or devised to executors or trustees as
joint tenants. A joint tenancy in personal property may be created
by a written transfer, instrument, or agreement.
(b) Provisions of this section do not apply to a joint account in
a financial institution if Part 2 (commencing with Section 5100) of
Division 5 of the Probate Code applies to such account. (Emphasis added)

What?  That can’t be?  Can it?

So yes California law does seem to allow a trust to be a joint tenant. The problem is it’s a relatively obscure law, in my opinion, that most lawyers do not know and I wonder how many title companies know?

I would not plan to rely on this and instead you should properly use a joint tenancy OR a trust. Trying to use both together is a recipe for a disaster in my opinion.

If you are going to go this route you need to be very specific on the deed that it is to be held in joint tenancy. Maybe even say “pursuant to California Civil Code 683a) and maybe even specify who is the measuring life for the trust’s joint tenant interest. It has to be the person who transfers it to the trust.

So, for example, Able and Buddy own a property together as joint tenants. Able wants to transfer his half to his trust.  The deed should read something like this:

Able and Buddy as joint tenants deed to:

Able as trustee of the Able Trust and Buddy as joint tenants, pursuant to California Civil Code 683a.

Accuracy is key here and, frankly, I am not sure this is a good idea to do. I just think it’s interesting that it is theoretically possible it seems.  This is not for the do-it-yourselfer!  This is for an experienced lawyer to do!

If it not done right then a probate is likely… if not full blown probate litigation.

Contact us with questions. -John

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