Arizona Real Estate Law

by Christopher A. Combs

The following is for informational purposes only and is not intended as definitive legal or tax advice. You should not act upon this information without seeking independent legal counsel. If you desire legal, tax or other professional advice, please contact your attorney, tax advisor or other professional consultant.

Beneficiary Deed Suggested to Avoid Probate of Property

Question: My husband and I have lived in our Glendale home for seventeen years. We are both elderly and want our two children to own our home without any probate after we die. We still have a mortgage on our home because we refinanced the mortgage several years ago as we have a limited income. How can our two children become the owners of our home after we die without probate? If our two children do become the owners of our home, will they have to pay off the mortgage on our home immediately?

Answer: If you and your husband now do not own your home “with right of survivorship,” (either as joint tenants with right of survivorship or community property with right of survivorship,) you should transfer the title to your home to both of you as community property with right of survivorship. You and your husband could then execute and record a beneficiary deed under A.R.S. § 33-405 to your two children. Upon the death of you and your husband, your two children would be the owners of the home without the requirement of probate. Your two children should not have the obligation to immediately pay the mortgage because under Federal law most mortgages cannot be accelerated to require full payment because of any transfer due to the death of the owner.

Phoenix attorney Christopher A. Combs is a partner with the firm of Combs Law Group, P.C. Reprinted with permission. Copyright 2005, all rights reserved.

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