Arizona Real Estate Law on Joint Tenant Rights of Survivorship

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The Ariziona Revised Statutes codifies the state's property laws.
The Ariziona Revised Statutes codifies the state's property laws. (Image: Jupiterimages/Comstock/Getty Images)

The Arizona Revised Statutes establishes the rights that joint owners have if they own property as joint tenants with a right of survivorship. The Arizona Legislature enacted laws in the 1990s giving spouses the legal right to convey property as community property owners with a right of survivorship. By owning property as communal owners, spouses now have a legal way to own property providing a surviving tenant with survivorship rights while avoiding costly probate fees.

In order to comprehend the implications of joint tenancy rights, a brief explanation of property law is required. A joint tenancy with a right of survivorship provides two or more tenants with equal rights to share the entire property or estate without restriction. When one tenant dies, the remaining tenants acquire his share by right of survivorship, and the last remaining survivor owns the entire parcel. Joint tenants cannot give away their respective shares by will, since the remaining tenants own survivorship rights. Joint tenants do not have to be related or married, but husbands and wives commonly own property as joint tenants to avoid some probate taxes.

Before the Arizona Legislature enacted the new laws, the only way husbands and wives could own property together while providing one another with the right to own the entire estate when one spouse predeceased the other was to own the estate as "joint tenants with a right of survivorship." Thus, if husband and wife owned property as joint tenants with a right of survivorship, as soon as one predeceased the other, the surviving spouse would own the entire estate. However, although the property conveyed to the remaining survivor by operation of law, probate was still necessary. Furthermore, the remaining spouse would be left to pay significant estate taxes if the estate was sizable.

Arizona Probate Laws

Arizona law allows the remaining communal property owner to convey the property to a third party through his will. Upon the surviving tenant's death, the beneficiary under his will could record his transfer without having to go through probate in limited circumstances. To avoid probate, the surviving spouse cannot own any other property except for the community real estate; the property owned must have less than $75,000 of equity; and the beneficiary must wait at least six months before recording the affidavit. Community property is joint marital property owned by both spouses in community property states, as opposed to equitable property states.

Property Rights by Subsequent Deed

A beneficiary deed is a written conveyance of land from a grantor (person deeding the land) to a grantee (person benefiting from the conveyance). Once a grantor signs the beneficiary deed, notarizes it and records it at the clerk's office, the deed automatically conveys ownership rights to the grantee upon the grantor's death. Beneficiary deeds avoid many of the associated costs of probate. Probate is a legal procedure whereby a court validates a written will as authentic and proper for administration. According to Arizona law, a beneficiary deed can also be created by joint tenants with rights of survivorship even though all tenants are still living. In this situation, all of the joint tenants must sign the beneficiary deed. Once the last joint tenant dies, the beneficiary deed automatically conveys the interest to the beneficiary named in the beneficiary deed. The grantor must record the beneficiary deed in the county clerk's office where the property is located.

Limitations

A will cannot change the disposition of joint tenancy property. For instance, a will purporting to convey survivorship property cannot be transferred under a will. Once a joint tenant passes away, the remaining survivor can change the property title to reflect ownership to the entire parcel or property by obtaining an "Affidavit Evidencing Termination of Joint Tenancy." The affidavit must be notarized, executed and filed with the local county recorder's office.

Considerations

Since state laws can frequently change, do not use this information as a substitute for legal advice. Seek advice through an attorney licensed to practice law in your state.

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