Probate clarification please

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Topic Author
fmhealth
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Joined: Tue Mar 25, 2008 10:24 am

Probate clarification please

Post by fmhealth » Sat Apr 13, 2019 4:32 pm

I've been led to believe that R/E passes without probate in community property states as long as the mortgage is titled correctly. Examples would be tenancy in common or joint tenancy with right of survivorship. Is this correct?

Thanks so much for any sage insights.

Be Well,
fmhealth

retire2022
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Re: Probate clarification please

Post by retire2022 » Sat Apr 13, 2019 4:46 pm


Topic Author
fmhealth
Posts: 182
Joined: Tue Mar 25, 2008 10:24 am

Re: Probate clarification please

Post by fmhealth » Sat Apr 13, 2019 9:52 pm

Arizona. One of the few community property states in the nation.

Thanks for your reply.

Wide Right
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Re: Probate clarification please

Post by Wide Right » Sun Apr 14, 2019 8:51 am

Real estate generally is not included in the probate estate if it is titled as CPWROS or JTWROS. Check the deed on file at the county recorder's office to see how title was taken. Exceptions would be if the survivorship was severed at some point or if the married couple was divorced prior to the first spouse's death.

Although probate would not be required to effect the transfer, the survivor would need to file an Affidavit of Death along with a certified copy of the death certificate.

Hope this helps.

bsteiner
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Re: Probate clarification please

Post by bsteiner » Sun Apr 14, 2019 9:04 am

fmhealth wrote:
Sat Apr 13, 2019 4:32 pm
I've been led to believe that R/E passes without probate in community property states as long as the mortgage is titled correctly. Examples would be tenancy in common or joint tenancy with right of survivorship. Is this correct?
fmhealth wrote:
Sat Apr 13, 2019 9:52 pm
Arizona. One of the few community property states in the nation.
If it's owned as joint tenants with right of survivorship, upon one spouse's death, the property is now owned by the surviving spouse as the surviving joint tenant.

If it's owned as tenants in common, or as community property, upon one spouse's death, the deceased spouse's interest passes in accordance with his/her Will. Arizona is a Uniform Probate Code state, which means that the probate procedures are simplified. If the deceased spouse didn't have a Will, his/her interest passes by intestacy. See Arizona Revised Statues §§ 14-2101 et seq. for the Arizona intestacy laws: https://www.azleg.gov/arsDetail/?title=14.

Wide Right
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Re: Probate clarification please

Post by Wide Right » Sun Apr 14, 2019 9:35 am

bsteiner wrote:
Sun Apr 14, 2019 9:04 am
If it's owned as tenants in common, or as community property, upon one spouse's death, the deceased spouse's interest passes in accordance with his/her Will.
AZ has the additional option of taking title as Community Property with Right of Survivorship (CPWROS), which is kind of a hybrid of joint tenancy and community property. CPWROS prevents either spouse from passing the property through a will but also gives a double step up in basis on the death of the first spouse.

NotWhoYouThink
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Re: Probate clarification please

Post by NotWhoYouThink » Sun Apr 14, 2019 9:38 am

I've been led to believe that R/E passes without probate in community property states as long as the mortgage is titled correctly. Examples would be tenancy in common or joint tenancy with right of survivorship. Is this correct?
Probably just a mis-type, but I'm sure you meant the deed, not the mortgage.

Topic Author
fmhealth
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Re: Probate clarification please

Post by fmhealth » Sun Apr 14, 2019 11:16 am

Thanks everyone for your incisive & rapier-like responses. Exactly the information I was searching for. You folks are the best!!

Be Well,
fmhealth

retire2022
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Re: Probate clarification please

Post by retire2022 » Sun Apr 14, 2019 11:35 am

fmhealth wrote:
Sun Apr 14, 2019 11:16 am
Thanks everyone for your incisive & rapier-like responses. Exactly the information I was searching for. You folks are the best!!

Be Well,
fmhealth
Op I would check the county's website in some states you can view the deed, mortgage note etc, that is public record. Also UCC-1, Uniform Commercial Code 1 which is a filing of a loan by the borrower, and UCC-3 which is a filing that the loan, mortgage or note is paid up.

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