Most people find themselves directly involved in the probate of an estate at some point in time during their lifetime. For you, it might be because a loved one appointed you the Executor of their estate or it might be because you are a beneficiary or heir of the estate of a recently deceased loved one. You might manage to avoid any direct involvement in the probate of someone else’s estate, however, at least a basic understanding of the Arizona probate process remains helpful for purposes of planning your own estate.
What Is Probate?
Almost everyone leaves behind an estate when they die. That estate consists of all assets owned by the decedent at the time of death, including both tangible and intangible assets as well as both real and personal property. To ensure that those estate assets are properly, and legally, transferred to the new owners, the law requires them to pass through the legal process known as probate. Along with facilitating the transfer of estate assets to the new owners, the probate process also serves as a way to ensure that all debts of the decedent are paid, including both personal and estate taxes.
Is Probate Always Necessary?
Some type of probate is almost always required, however, formal probate may not be necessary. Like most states, Arizona offers an alternative to formal probate for small estates. Estates that include less than $75,000 of personal property and less than $100,000 of real property may qualify to use a small estate affidavit to transfer assets in lieu of going through the full probate process.
In addition, not all assets are considered probate assets. Non-probate assets bypass the probate process and may be distributed to beneficiaries immediately following the death of the decedent. Examples of non-probate assets include:
- Proceeds of a life insurance policy
- Assets held in a trust
- Funds or property held in an account titled as “payable on death (POD)” or “transfer on death (TOD)”
- Jointly held property if titled with rights of survivorship
- Funds held in certain types of retirement accounts
Who Oversees the Probate Process?
If the decedent died testate, meaning he/she left behind a Last Will and Testament, the individual named as the Personal Representative in the Will oversees the probate of the estate. If the decedent died intestate, or without a Will, any competent adult can volunteer to oversee the probate process. If no one volunteers, the court will appoint someone.
What Are Some Common Steps in the Arizona Probate Process?
Common steps involved in the probate of an estate include:
- Opening probate. This requires you to submit the original Will along with a petition to open probate to the appropriate probate court.
- Identifying, securing, and valuing estate assets. All assets must be secured and a date of value must be ascertained for all assets.
- Notifying creditors. Creditors of the estate must be notified that probate is underway and given an opportunity to file a claim. Known creditors may be given actual notice while unknown creditors are notified via publication in a local newspaper. Creditors only have a limited amount of time within which to file a claim. The Personal Representative reviews all claims and pays approved clams out of estate assets.
- Litigating any challenges. If someone filed a Will contest, it must be litigated before the probate process can be concluded. The Executor is also duty bound to defend the Will submitted to probate.
- Paying taxes. All estates are potentially subject to federal gift and estate taxes. If any are due, they must be paid before the probate process can reach a conclusion.
- Transferring assets. All assets remaining in the estate are transferred to the intended beneficiaries pursuant to the provisions of the decedent’s Will or are distributed to legal heirs of the estate pursuant to Arizona’s intestate succession laws.
If you find yourself involved in the probate of an estate and you need guidance and/or advice, consult with an experienced Arizona estate planning attorney.
For more information, please join us for an upcoming FREE seminar. If you have additional questions or concerns about the Arizona probate process, contact an experienced estate planning attorney at Morris Hall PLLC by calling 888-222-1328 to schedule your appointment today.
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