Property Ownership in Arizona
Title is a legal term for one's ownership rights in property. In Arizona there are many ways to officially record your ownership rights and provide for these rights to transfer to other people/entities. As a buyer, you will be asked by the title company to select one of the following title designations:
- Community Property
- Community Property with Right of Survivorship
- Joint Tenancy with Right of Survivorship
- Tenants in Common
- Sole and Separate
- Community Property (married couples only)
Arizona is a Community Property State, meaning by statute all property acquired by either party is presumed to be the property of the community unless officially stated otherwise. Each spouse holds a one-half interest in the property, although neither can sell their individual one-half interest. One spouse may list the home for sale, but the sale or refinance of the property requires the signature of both spouses. Each can convey their one-half share of the community property via their will to a 3rd party and upon death, the estate of that person must go through probate, affidavit or adjudication.
Community Property with Right of Survivorship (married couples only)
Co-Ownership by both spouses providing for the surviving spouse to retain full title after the death of the other spouse without involving the courts. Same as general community property with the exception that the estate conveys to the surviving spouse outside of probate with no court action required.
Joint Tenancy with Right of Survivorship
This is sometimes called a "poor man's will" because it eliminates the need to probate. This type of ownership cannot be inherited and cannot be willed because it ceases with death. Parties need not be married. This is a form of co-ownership giving title to the last surviving Joint Tenant outside of probate with no court action required. There may be more than two joint tenants, and each owns an equal an undivided interest. Each party can sell his or her interest in the property, although to sell the entire interest or encumber it (put a lien against it), requires signatures of all joint tenants.
Tenants in Common
Parties need not be married, there may be more than two parties, and each may hold a disproportionate fraction of the interest in the entire estate (i.e. 30%/70%). Each share may be conveyed, willed to a 3rd party or mortgaged. To encumber (put a lien against it) or convey the estate as a whole requires the signatures of all tenants. Upon the death of a tenant, their % share passes to their heirs by their will or intestacy and the estate of the decedent must pass through probate, affidavit or adjudication. If two single people do not select another option, they will automatically become tenants in common.
Sole and Separate
This is Real Estate owned by an unmarried person or by a spouse either when acquired by gift or devise (inherited through a will), or acquired outside of the Community Property. When a married person acquires title as Sole and Separate Property, their spouse must sign and execute what is called a Disclaimer Deed, basically disclaiming any ownership rights in that property.
This is Real Estate owned by a single, unmarried individual.
There are several ways to create a trust through which one or more individuals or investors may legally take title, however the trust itself cannot hold title. A trustee must be named who will hold title and authority for the trust, as set forth in the trust agreement. Please provide your title agent with the names of Trustees and date of Trust organization.
Corporation, LLC Company, General or Limited Partnership, Evidence of Formation and Authority
When taking title in the name of a legally formed entity there will be additional title requirements for the appropriate organizational documents for the entity, as well as evidence that the entity has been properly formed and filed in the state of origin. Those documents must also indicate who has been granted authority to sign on behalf of and bind the entity.
There are many ways to convey title to heirs, 3rd parties and legal entities with and without having to go through probate (the court). Your estate planning attorney or accountant can help you pick the right instrument for your situation.
This information is provided as a courtesy only. Taking title to real property can result in legal and tax obligations and consequences, especially upon the death of an individual owner. For more information, you are encouraged to contact a professional legal or tax advisor. Desert Fairways Realty is not engaged in the practice of law or accounting, nor do we give legal or accounting advice.
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