What is included in the Probate Estate

Though there is an option for married persons to create a joint will, it is more common for married persons to create separate wills, even if the spouse’s wishes were identical. So, for married persons, it is important to understand what one spouse’s will can include for disposition. The property subject to the dictates of a will is called the “probate estate.” The nature of a probate estate depends on jurisdiction. As an Arizona resident, I will focus on basic principles of community property.

In community property states the probate estate is made up of one half the community property and all separate property of the testator. The community property presumptive rule is that all property acquired through onerous endeavor is community property, thus subject to management by both spouses and shared equally by both spouses (50/50). All property brought into a marriage is separate property of the spouse whose it was before marriage. All property acquired by gift, devise, or descent is characterized as separate property.

In basic accordance with the rules detailed above, the probate estate is made up of all property the individual spouse has a claim to: one half of the community property and all of that spouse’s separate property. The individual spouse’s will generally has no ability to dispose of the non-testator spouse’s share of the community property, nor the non-testator spouses separate property.


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