If a deed is written as “joint tenants with the right of survivorship” between an unmarried couple and 1 of the co-owners dies, is the equity subject to probate?

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If a deed is written as “joint tenants with the right of survivorship” between an unmarried couple and 1 of the co-owners dies, is the equity subject to probate?

In a community property state, can anyone other than the other co-owner (that has right to survivorship) obtain any of the equity?

Asked on June 25, 2012 under Estate Planning, Arizona

Answers:

Anne Brady / Law Office of Anne Brady

Answered 9 years ago | Contributor

Generally speaking, if a deed is written as JTWRS and one party dies, that is a non-probate asset that passes directly to the co-owner.  If one of the parties to the deed is married to someone other than the co-owner, the question in Arizona becomes when did the party acquire the interest in the property?  If it was while s/he was married, then the community has an interest in his or her half of the property.  There are some exceptions to that, such as if the Party purchased his interest in the property with clearly separate funds or if he inheriited his interest.  Community property laws will kick in only if the married couple gets a divorce.  


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