Should you hold real estate as community property, in joint tenancy or in some other form? The decision of how to hold real estate involves several considerations including probate, liability, and creditor claims. This decision should be made only after consultation with an attorney experienced in real estate law.

Joint Tenancy

Many clients have asked us if they can avoid probate by holding real estate in joint tenancy. The answer is yes, but it is not without pitfalls. People don’t always die in the anticipated order and the last survivor takes the entire property. This can cause tax problems that could be avoided. Generally spouses may want to consider holding real estate as community property with the right of survivorship.

Community Property with Rights of Survivorship

The Arizona legislature has completed its work on ARS 33-431 and the amended version of this statute provides for a Community Property deed with rights of survivorship. The significance of this new form of ownership is that married Arizona homeowners can now avoid probate and enjoy the tax benefits of community property. The survivor now owns 100% of the property instead of having only one half interest. These benefits have not previously been combined. Arizona married homeowners should take advantage of this new law.

This new status can be created without the need for a "straw person," which is required with Joint Tenancy deeds with rights of survivorship, and it can be terminated by the recording of an affidavit.

To discuss your estate planning and real estate title concerns, contact our office to speak with an experienced Arizona attorney.