When to Update a Deed

When your spouse dies but his or her name is still on the deed to your house, you need to update the deed. In a community property state such as Idaho, the surviving spouse updates the deed. If you don’t update the deed, your heirs run into probate problems after you die.

Community Property with Right of Survivorship

Idaho Code § 15-6-401 allows married couples to avoid probate of real property under specific circumstances. The deed must state that the couple is holding the property as community property with right of survivorship. This requirement exceeds simply naming both spouses in the deed. You must insert the phrase “community property with right of survivorship.” After one spouse dies, the real property legally transfers to the surviving spouse.

Next Steps to Update a Deed

Fill out an Affidavit of Surviving Spouse for Transfer of Community Property with Right of Survivorship. You need the following information for the affidavit:

• Name of your county
• Your spouse’s name
• Your spouse’s date of death
• Date you were married
• Legal description of your property

The affidavit needs notarization and should be recorded with your county recorder’s office.

Real World Caution

Creating a revocable living trust should avoid probate problems. Unfortunately, I saw a client that fouled up his estate planning because he never acted when his wife died years ago. Although we planned to put his real property into his trust, we couldn’t because his wife’s name was still on the deed. He neglected to inform me so it required extra time and effort to fix the problem.

Other Options

Community property with right of survivorship works in limited situations. It avoids probate of your house but doesn’t address all your other assets. Form a complete trust-based estate plan to avoid probate. Trust-based plans contain many other benefits, so schedule an appointment to discuss your needs.