PROBATE, DEEDS AND WILLS

Probate: process of passing on a decedent's property after their death.

Beneficiary Deed: passes property, without giving the beneficiary any present interest in the property. You can also avoid probate by passing property under the terms of a trust. Property which lacks a successor in interest, needs to be probated.

Disclaimer Deed: usually required by the lender when married and taking title as sole and separate property.

Quit Claim Deed: does not assume any warranties of title.

Valid Will (other than a holographic will): needs to be in writing. In addition, the intent should be present in the language of the document, signed and have two witnesses. A notary is not necessary, however it is recommended. A notarized will is considered "self-proved" and can be submitted to probate as is. Otherwise, it is generally necessary to have the witnesses execute affidavits; a formal probate will be required to prove the will by other evidence if the witnesses are not found.

Holographic Wills (recognized in AZ): material provisions of the will need to be in the handwriting of the decedent and it needs to appoint a personal representative (witnesses not necessary). An affidavit of a close friend or family member recognizing the handwriting of the decedent and describing the circumstance when the will was found, will be required.

Intestacy: there is no valid will. Check with an attorney should you have questions how your property will be divided in this situation.

WAYS TO HOLD TITLE TO REAL ESTATE IN AZ:
You are encouraged to contact a professional legal tax advisor.

Community Property: AZ is a community property state. There is a statutory presumption that all property acquired by husband and wife is community property. Community property is a method of co-ownership for married persons. Upon the death of one of the spouses, the deceased spouses' interest will pass by either a will or intestate succession, through the probate courts.

Community Property with Right of Survivorship: This form of property ownership not only allows the husband and wife to acquire property in their community estate, but also passes title to the last survivor outside of probate. This manner of holding title MAY have tax advantages that are not available with other methods of ownership.

Joint Tenancy with Right of Survivorship: Joint tenancy with right of survivorship is a method of co-ownership that passes title to real property to the last survivor. Title to real property can be acquired by two or more individuals. If a married couple acquires title as joint tenants with the right of survivorship, they must specifically accept the joint tenancy to avoid the presumption of community property.

Tenants in Common: A method of co-ownership where parties do not have survivorship rights and each owns a specific undivided interest in the entire title.

Sole and Separate: Real property owned by a spouse before marriage or any acquired after marriage by gift, devise, or descent of specific intent. If a married person acquires title as sole and separate property, his/her spouse must execute a Disclaimer or Quit Claim Deed.

Corporation: Title may be taken in the name of a corporation provided the corporation is duly formed and in good standing in the States of its incorporation.

General Partnership: Title may be taken in the name of a General Partnership duly formed under the laws of the State of the formation of the Partnership. A partnership is defined as a voluntary association of two or more parties as cofounders in business for profit.

Limited Partnership: A partnership formed by two or more parties under the laws of Arizona or another state, and having one or more general partners and one or more limited partners. A Certificate of Limited Partnership must be filed in the office of the Secretary of State.