What must house deeds say to prevent probate after the death of a spouse?

1 answer | Last updated: Nov 03, 2016
A fellow caregiver asked...

We are married with a house deed that has both our names on it. What does it have to state on the deed in order to avoid probate in the event one of us dies? Would it be joint survivorship?


Expert Answers

Barbara Repa, a Caring.com senior editor, is an attorney, a journalist specializing in aging issues, and the author of Your Rights in the Workplace (Nolo), now in its 10th edition.

There are a few different ways you and your spouse may jointly own the house"”and all of them will allow you to avoid probate. The exact phrasing required depends on the state in which you live.

Look carefully at the deed. If it states that you own the house as "joint tenants with right of survivorship" or in "tenancy by the entirety ”an option available only for married couples and only available in some states"”then the surviving joint owner will automatically get the house when the first one dies.

And if you live in Alaska, Arizona, California, Nevada, or Wisconsin, the house will pass automatically to the surviving owners as long as the deed states it is "survivorship community property" or "community property with right of survivorship" or "survivorship marital property."

In South Carolina, the deed should include the words "as joint tenants with rights of survivorship, and not as tenants in common."

If your deed includes one of these descriptions, you are set.

If your deed does not include any of these magic phrases, you should be able to amend it easily at the county registrar of deeds office.

And if you live in Texas, you and your spouse would have to sign an additional written agreement to make the joint ownership agreement valid. A real estate office should provide the simple form for this.