Detailed Answer
This answer explains how heirs who jointly inherit a house in Arizona can try to keep the property instead of being forced to sell it. It covers common legal steps, practical options, and the risk that a court-ordered sale (partition) may occur if the co-owners cannot reach agreement.
Who owns the house after a person dies?
Ownership depends on how title was held before death and whether the property goes through probate. If the decedent held title as a joint tenant with right of survivorship, the surviving joint owner(s) usually take the property automatically. If the decedent’s interest passes through probate (for example, because title was in the decedent’s name alone), the house typically becomes co-owned by the heirs according to the will or Arizona’s intestacy rules. See Arizona probate statutes for intestacy and distribution: A.R.S. Title 14 (Trusts, Estates and Protective Proceedings).
Legal forms of co-ownership and why they matter
The two common forms of co-ownership for heirs are tenancy in common and joint tenancy. Tenancy in common means each owner holds an individual share that can be sold or inherited. Joint tenancy usually includes a right of survivorship so the share passes automatically to co-owners at death. The form of ownership affects what options heirs have and how the property transfers. If ownership is unclear, a recorded deed, mortgage records, or probate filing will clarify title.
Primary ways heirs can keep the house
- Agree to co-own and cooperate — Heirs can keep the house and share occupancy, expenses, taxes, and mortgage payments under a written co-ownership agreement that sets roles, responsibilities, and dispute procedures. A signed agreement reduces the chance one owner files a partition action.
- One heir buys out the others — Use a professional appraisal to set fair value, then have one heir pay each co-owner for their share. That payment can be financed by a refinance or new mortgage in the buying heir’s name. Recording a new deed after closing clarifies who owns the house.
- Refinance or assume the mortgage — If the house has a mortgage, the buyer-heir must qualify for refinancing or the lender must approve an assumption. Paying off loans and taking title in one heir’s name is a common path to keeping the home.
- Family buyout plan with promissory notes — Co-owners can agree that one heir takes title and pays others over time by signing promissory notes secured by the property. Properly drafted documents and recording of liens protect both parties.
- Partition in kind (rare) — Courts prefer dividing land physically only when practical (usually for large, divisible property). For a single-family home, physical division rarely works.
What if heirs can’t agree — partition actions
If co-owners cannot reach agreement, any co-owner may file a partition action in Arizona court. Partition law lets the court either physically divide the property (partition in kind) or sell it and divide the proceeds (partition by sale). For most homes, a sale is the likely outcome. Partition statutes and civil procedure govern these actions: A.R.S. Title 12 (Courts and Civil Proceedings) — partition actions. A partition action can be costly and time-consuming, and the court may award costs and attorney fees to the prevailing party.
Practical steps to pursue keeping the property
- Confirm title and probate status. Obtain a copy of the recorded deed and any probate filings. If the estate is open, check the personal representative’s plan. (Arizona probate statutes: A.R.S. Title 14.)
- Get a current appraisal or broker price opinion. A neutral valuation helps negotiate buyouts and loan underwriting.
- Discuss and document a written agreement among heirs covering occupancy, payments, repairs, taxes, insurance, and timelines for buyouts or sale.
- Explore financing: check whether an heir can qualify to refinance the mortgage, or whether a lender will allow assumption.
- Use mediation or family meeting to resolve disputes before litigation. Courts often view a good-faith negotiation favorably and litigation increases costs for everyone.
Costs, timing, and likely outcomes
Keeping the house usually requires one heir to take on mortgage and upkeep payments or for all heirs to cooperate financially. If cooperation breaks down, a partition sale is likely. Partition litigation can take many months, sometimes years, and will reduce the net proceeds because of attorney fees, court costs, and sale expenses.
When to get legal help
Consult an Arizona probate or real estate attorney if you need to: confirm who legally owns the property, draft or review a buyout agreement, handle refinancing or deed transfers, or represent you in a partition action. An attorney can also explain deadlines, tax consequences, and ways to structure payments to minimize disputes.
Disclaimer: This article provides general information about Arizona law and is not legal advice. It does not form an attorney-client relationship. For advice specific to your situation, consult a licensed attorney in Arizona.
Helpful Hints
- Start by pulling the deed and any recent title report. Knowing recorded ownership is essential.
- Obtain a neutral appraisal before negotiating a buyout to avoid lowball offers and disputes.
- Put any family agreement in writing. Oral promises are hard to enforce if conflict arises.
- Consider mediation early. A neutral mediator can preserve family relationships and avoid expensive court fights.
- Check for liens, unpaid taxes, or mortgage arrears—these affect who can keep the home.
- If refinancing, confirm the lender’s requirements for occupancy and credit qualification.
- Understand tax implications: transferring property may trigger capital gains or change property-tax assessments; ask a tax advisor.
- Act quickly. Probate deadlines, creditor periods, and statute of limitations can affect your options.