Arizona And New Mexico Probate Process

morris-hall-probate-processProbate is not difficult to understand, but it is usually very difficult to undertake. Since the decedent is not present to sign deeds, write checks, distribute assets to beneficiaries or handle final business affairs, the probate court assigns those duties to a personal representative. Unfortunately, the process is more difficult than it needs to be because the probate court will have control and final say in everything you do. Court involvement in your family’s financial affairs can make the process drawn out, expensive and bureaucratic. Since probate is also a public process, the entire world will have a ringside seat.

At Morris Hall, PLLC, our goal as estate planning and probate attorneys is to help you avoid the probate process through the use of a properly created trust. If probate can’t be avoided on a particular circumstance, our lawyers will help you handle it as efficiently as possible.

What Is Probate?

Probate refers to the legal actions taken upon death for estates valued in excess of certain minimum amounts. In Arizona, that amount is $75,000 in real estate or $50,000 in all other assets. In New Mexico, any real estate will trigger a probate, as will other assets over $30,000.In the probate process, the court must determine if a legal will was in place for the disbursement of assets, who is entitled to assets if a valid will does not exist, and which assets are available to creditors. If the deceased did not have a valid will, the court will determine who will get the assets under the law of intestacy.There are five basic steps to settling an estate in Arizona and New Mexico:

  • Filing the probate petition and gathering records: A formal written petition and a filing fee are required to begin the probate process. The court will appoint someone to serve as executor of the will or personal representative of the estate.
  • Publishing a notice to creditors: A person’s debts do not disappear into the grave. Creditors have a right to claim unprotected assets to satisfy debts owed by the decedent. The personal representative must publish a notice to creditors and give them time to make claims.
  • Inventorying and appraising assets: Estate assets are not freely available to beneficiaries until a full inventory, appraisal and valuation of real and personal property is completed. Extensive valuations and accounting may be required to complete the inventory.
  • Paying debts, claims and taxes: The probate court will approve payment of all debts owed by the estate. There maybe be a federal estate tax due and some estates may also have a death tax liability. The probate must remain open until the taxes are paid.
  • Distributing and closing the estate: After all legal requirements have been met, the probate court will order all claims, taxes, attorneys fees, compensation for the personal representative and any other miscellaneous expenses to be paid from the assets. Thereafter, the personal representative can distribute remaining assets to the beneficiaries.

In a recent series of articles, the Arizona Republic has reported on the dangers and abuses of the probate system, conservatorship and guardianship. All of these issues can be avoided through proper estate planning techniques as practiced by our firm.For more information about probate and estate planning, contact us to arrange a consultation with an experienced attorney at a location near you. Our offices are located in Phoenix, Tucson, Albuquerque and communities throughout Arizona and New Mexico.