Can a Married Couple Avoid Probate in a Community Property State?

Exactly what steps can a married couple take to avoid Probate on their real estate property when creating their Last Will and Testament? And does living in a Community Property state affect those steps?

When a married couple is creating their Last Will and Testament documents (two separate documents, one for each spouse; see why here), that’s the perfect time to consider the ability to avoid Probate Court on the couple’s real estate assets and take steps to make it so.

First, to be clear: in some states community property doesn’t have to go through Probate to transfer ownership rights at all when one spouse dies; in others, it does.

But either way, when living in a state whose laws provide for community property, spouses can avoid probate by taking title to property as “community property with the right of survivorship.”

In Arizona for example, a Deed transferring real property to the spouses containing the proper “survivorship” language will avoid the probate process (as the surviving spouse will become the owner on the death of the first spouse to die).

But merely living in a survivorship property state does not guarantee probate avoidance. For the Deed containing the survivorship language to be most effective, it should be filed with the County Recorder or land records office; merely attaching a Survivorship Deed to a Last Will may not establish the survivorship interest.

To create a Survivorship Deed for filing with your local recorder’s office, see Standard Legal’s Quitclaims Deed legal forms software package.

To create a Last Will and Testament that covers nearly every type of family situation and distribution method, see Standard Legal’s Last Will legal forms software package.

Standard Legal can also help a couple create finished Deed or Will documents through its Legal Document Preparation Service.

For other types of property besides real estate, a custom written agreement can be created which would establish the survivorship rights as well.