If you hold title to your home as community property, your home does not automatically transfer to you at your spouse’s death.
Joint tenancy lets two or more persons—the joint tenants—to own property with a right of survivorship. This means that when one of the joint tenants dies, the surviving joint tenant automatically receives the deceased tenant’s share of the property. For example, in Idaho many people own vehicles as joint tenants. By using the magic word or instead of and when they list vehicle owner’s names on the title, they create a joint tenancy. Upon the death of one of the joint tenants, the surviving joint tenant simply signs a request for a new title at the assessor’s office to have the title to the vehicle transferred into his or her sole name.
Many couples in Idaho falsely assume that their home will also transfer automatically to the surviving spouse. But, Idaho is a community property state, and this is not the way community property laws work. There is, however, a way to hold title to community property so that it does transfer automatically. The magic words are found in Idaho Code §15-6-401. The deed transferring the property must include these words: “to be an estate in community property with right of survivorship.” If a couple wonders how they hold the title to their home, they should check their deed for these words. If these words are not in the deed, they can prepare a new deed to themselves using these words. When a couple holds title to their home as community property with a right of survivorship, they will avoid probate on the death of the first spouse. All the surviving spouse needs to do to transfer the title to the surviving spouse is to record a death certificate.
Tom Packer is an Elder Law Attorney serving all of Southeast Idaho. As part of his law practice, Tom offers Life Care Planning to deal with the challenges created by long-term illness, disability and incapacity. If you have a question about a Senior’s legal, financial or healthcare needs, please call us.