When property is owned by spouses as joint tenants with rights of survivorship or as community property with rights of survivorship, the interest of the first spouse to die passes to the surviving spouse. If property was held between spouses with “rights of survivorship” then it can pass without having to go to probate. While you do not have to go to probate court to transfer title out of the deceased spouse’s name, you typically need to record something with the county where the property is located to transfer the deceased person off of title. The procedure differs a bit amongst the states but essentially it will require the filing of an original death certificate and affidavit or statement from the surviving spouse. For example, in California the surviving spouse can file an Affidavit of Death of Joint Tenant along with a certified copy of the death certificate. In Utah, the surviving spouse files a Survivorship Affidavit along with a certified copy of the death certificate.
Property owned in a Revocable Living Trust of a couple doesn’t require any filings with the county to change title as the Trust remains the sole owner and typically the surviving spouse simply becomes the sole beneficiary for their remaining life of the assets of the trust.
We routinely assist clients with title transfers to their LLCs and Trust and also assist clients who may have title with a deceased spouse still listed as an owner. The rules and procedures are a little tedious but it is important to update title upon the passing of a spouse as the surviving spouse’s heirs will have problems and possibly two probates upon inheriting title from the surviving spouse. While we want every client to have a well tailored estate plan and to not even need to know these rules, we realize many families still rely on property to transfer by reason of “rights of survivorship” so these rules and the procedure are important for many.