Does a Will take precedence over marriage, in a community property state?

The Will (approximately 30 years old) names wife’s youngest daughter of 7 children to take ownership of the house. Husband (of 9 years) is an illegal still living in the home. They had no children together. Wife died 3 1/2 years ago and the house is still only in her name. Will just found. The husband is a year older than this youngest child.

Asked on December 8, 2010 under Estate Planning, Arizona


MD, Member, California Bar / FreeAdvice Contributing Attorney

Answered 9 years ago | Contributor

A house is given to the survivor whenever there is a joint ownership of the home with right of survivorship.  If she is the only name on the home, the house would have gone by probate law (3.5 years ago) because she would have been considered by the probate court to have died intestate (without a will or trust or other form of estate plan).  The house would then have gone most likely to her husband (if she was married and not separated at time of death) and to her kids in a percentage of 1/3 and 2/3 or half half.  If the will was found and estate not probated yet or if probated, the need may occur to reopen the matter and file a motion the house is to go automatically to her youngest daughter.  Contact a probate attorney to see what can be done and if the family is not precluded by any statutes of limitations.

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