Avoiding Probate With Survivorship Community Property

In a lot of states, you can possess assets as “survivorship community property” with your partner and avoid probate.

If the state you reside in is a community property one, you and your partner might make it possible to bypass probate by taking title to possessions as “community property with right of survivorship.” When this choice is accessible to you, it’s probably going to be a wiser alternative than joint tenancy. Tenancy by the entirety, is unavailable in community property states.

States With “Community Property With Right of Survivorship”

Alaska
Arizona
California
Idaho
Nevada
Wisconsin

Community Property Fundamentals

Community property is a legal classification, stipulated by law—it applies to specific property no matter the way you hold title to it. When you reside in a community property state, a lot of property obtained by either you or your spouse throughout the marriage is systematically community property, unless you agree differently. Your income, for instance, is community property, and so is everything you purchase with that income.

There are exemptions. Property inherited by one spouse, for instance, is not considered community property. And spouses can sign an agreement declaring that their income or other assets are not community property.

Survivorship Community Property

“Survivorship community property,” in contrast, is the way that spouses are able to hold title to specific assets. In that way, it’s likewise to “joint tenancy” or “tenancy by the entirety.” Spouses purchasing a house, for instance, are able to state on the house’s deed that they are taking title to the property as survivorship community property.

Holding property as survivorship community property has specific outcomes, the most important of which are that:

when the first spouse or partner passes away, the entire property systematically belongs to the survivor, and
the property does not require probate to be transferred to the surviving spouse.
When you hold title as “community property with right of survivorship,” then when one partner passes away, the other is going to systematically own the community property. Probate is no going to be necessary for making the transfer. The process of transferring title to the surviving spouse is going to be straightforward. The precise steps is subject to the type of property, but usually all the new owner has to do is fill out a simple form and submit it, with a death certificate, to whoever holds the ownership records: a financial institution, state MVD, or real estate records office of the county in which the deed was signed.

Adding or Removing Survivorship Community Property

To make property into right of survivorship community property, you just need to put the correct words on the title document.

Adding the Right of Survivorship to Community Property

Alaska

“survivorship community property”
Stat. § 34.77.110(e)

Arizona

“community property with right of survivorship”
Rev. Stat. § 33-431

California

“community property with right of survivorship”
Civ. Code § 682.1

Idaho

“community property with right of survivorship”
Idaho Code § 15-6-401

Nevada

“community property with right of survivorship”
Rev. Stat. § 111.064

Wisconsin

“survivorship marital property”
Stat. Ann. § § 766.58, 766.60

Spouses are able to change their minds and remove the survivorship stipulation down the road, but it is required to be executed in writing. The spouses should create a new title document that doesn’t contain the right of survivorship.

Source:

Mary Randolph, J. D. (2020, November 3). Avoiding probate with Survivorship Community Property. www.nolo.com. Retrieved May 10, 2022, from https://www.nolo.com/legal-encyclopedia/free-books/avoid-probate-book/chapter6-5.html

Arizona Family Law

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