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In Arizona..a home is held JTROS, and awarded to the wife in a divorce decree. She never deeds the now ex husband off the title

Phoenix, AZ |

and she dies without a will. The title co. insists that 1/2 go thru probate..due to the existence of the divorce. The family court says due to her death..the court has no claims.
Title co. will not insure without probate..says it is the law..but our real estate lawyer says the deed-- not the divorce decree-- prevails. The home has no equity and will be a short sale..but the ex can't afford money for a probate lawyer. It is looking like no choice but foreclosure now. Your thoughts?

Attorney Answers 2


For anyone who reads this, the message is that unless the family court decree is in recordable form, and recorded, this problem is likely to recur. The joint tenancy deed is unchanged by the divorce decree itself. If the divorce decree is not recorded, the title is unchanged and the ex husband is still on title. If recorded, then he is no longer on title, and a probate is probably required as the title officer says. If the money is not available for a probate, then it is probably going to foreclosure, as the questioner states.

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Assuming the lender can only look to the home for satisfaction of the debt, then foreclosure seems like the cleanest move. But remember, there still remains other responsibilities regarding the home until foreclosure occurs, so don't just "walk away" without understanding all of your responsibilities. And, if there is a non-purchase money second mortgage, then you will definitely need to get the ownership issue resolved absent a settlement with the junior lender.

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