Question: My husband and I are in an argument about how to hold title to real estate in order to avoid probate. My husband says that, if the deed to our home says “and/or,” the surviving spouse will automatically acquire title to the real estate without any probate. According to my husband, the reason that no one knows about the benefit of “and/or” on a deed is that lawyers and title companies make money on the paperwork for spouses generally holding title to real estate as community property with right of survivorship. I say that the law requires the deed to say community property with right of survivorship to avoid probate. Who is right?
Answer: You are right. The holding of title “and/or” may avoid probate of motor vehicles and bank accounts, but will not avoid probate of real estate. Arizona has specific requirements in order for the surviving spouse to acquire the deceased spouse’s interest in real estate without probate, including written acknowledgement by both spouses that the surviving spouse will hold title to the real estate.
Note: if you and you husband owned your home “and/or,” you would own your home as 50%-50% tenants-in-common. Either you or your husband could sell or mortgage their individual 50% tenant-in-common interest without the other spouse’s consent; after death the 50% tenant-in-common interest of the deceased spouse would generally require probate.