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.

Transfer Title Into Husband's Name To Avoid Probate

Question: Next month my husband and I are scheduled to close on the purchase of a home in Mesa. Due to my husband's bad credit, however, the mortgage loan and the title to the home will be in my name only. If something were to happen to me, I would want my husband to own the home without any hassles from the mortgage lender. Any suggestions?

Answer: After you close on the purchase of your home in your name, you should transfer the title to the home from you to you and your husband as community property with right of survivorship. If "something were to happen" to you, your husband would own the home without probate. You should not have any hassles from the mortgage lender. Although most mortgage loans have a "due on sale" clause which means that the entire amount of the mortgage loan will be due and payable upon any transfer of title to the home, most mortgage loans are governed by federal law. Under federal law, a "due on sale" clause does not apply to "a transfer where the spouse or children of the borrower become an owner of the property." Note: You could also execute and record a beneficiary deed to your husband. Upon your death, your husband would own the home at that time.

Phoenix attorney Christopher A. Combs is a partner with the firm of Combs Law Group, P.C. Reprinted with permission. Copyright 2006, all rights reserved.

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