-
-
Most people leave behind an estate when they die that consists of all assets, both tangible and intangible, owned by the decedent at the time of death. Probate is the legal process by which those assets are identified, located, and valued, and that eventually serves to distribute assets to beneficiaries and/or legal heirs of the estate.
-
-
-
If the decedent left behind a valid Last Will and Testament, the individual named as the Executor is responsible for overseeing the probate process and the terms of the Will are used to determine how the estate assets are distributed. If the decedent died intestate (without a Will), someone typically volunteers to oversee the probate of the estate. In that case, the state intestate succession laws dictate how estate assets are distributed.
-
-
-
Although the probate process is unique for every estate, common steps in the process include:
-
- Identifying, locating, and valuing all estate assets.
- Categorizing assets as probate or non-probate assets.
- Opening the probate of the estate.
- Notifying creditors of the estate that probate is underway.
- Reviewing and approving or denying creditor claims.
- Prioritizing and paying approved claims.
- Defending any challenges to the Will or litigating any claims.
- Calculating any paying federal (and state, if applicable) gift and estate taxes.
- Transferring any remaining assets to the named beneficiaries and/or legal heirs of the estate.
-
-
-
-
Some estates cannot avoid formal probate; however, when it can be avoided, it should be. A complex estate can take months, even years, to get through the formal probate process. Creditors have four months to file a claim in Arizona and then those claims must be reviewed. For this reason, even a relatively small estate can take a year or longer to probate. If the estate becomes involved in litigation, formal probate can drag on for years. Along with the time it takes to get through formal probate, it can also be very expensive because everyone involved in the probate of the estate (Executor, lawyers, appraisers, accountants) is entitled to a fee. This can dramatically diminish the value of the estate that is ultimately passed down to loved ones.
-
-
-
In some states, small estate alternatives to formal probate are not available if the decedent left behind a valid Will. In Arizona, however, the existence of a Last Will and testament does not preclude the use of a small estate alternative if the estate otherwise qualifies.
-
-
-
To determine if the estate qualifies for a small estate alternative, you must determine the value of the estate. Assets are classified as probate or non-probate at the beginning of the probate process. Assets that are considered non-probate assets bypass probate altogether and can be distributed directly to the named beneficiaries, meaning they are not part of the probate process. Common examples of non-probate assets include:
-
- Assets held in a trust
- Proceeds of a life insurance policy
- Certain types of jointly help property
- Assets held in an account with a “payable on death (POD)” or a “transfer on death (TOD)” designation
- Certain retirement, pension accounts
-
-
-
-
Arizona allows certain real and personal property to be transferred using a Small Estate Affidavit if the estate qualifies. To use a Small Estate Affidavit to transfer personal property you must wait 30 days. To transfer real property using a Small Estate Affidavit there is a six-month waiting period.
-
-
-
To use a Small Estate Affidavit in lieu of formal probate in Arizona, the following must apply:
- The value of all personal property does not exceed $75,000 and/or
- The assessed value of real property, less liens and encumbrances, does not exceed $100,000 and/or
- You are the surviving spouse, and you want to use the Affidavit to Collect Personal Property to collect wages of up to $5000 owed to the decedent and/or
- You are entitled to the real property and/or personal property, and have the legal right ("legal standing") to submit an affidavit claiming the property because:
- You are named in a will to receive the property and you can prove it OR
- The person who died did not have a will, but you are related to the decedent as the surviving spouse, child, parent, or sibling AND if there are people with equal or greater right than you to the property, they have all assigned their entire interests in the estate to you, which is proven by the copy of the documents they signed to this effect that you can attach to the affidavit.
-
Contact Us
For more information, contact a Phoenix probate lawyer at Morris Hall PLLC by calling 888-222-1328 to schedule your appointment today.
