When a recently deceased loved one leaves behind a Last Will and Testament and/or a trust agreement the steps that need to be taken to administer the estate are much clearer. Unfortunately, not everyone executes a Will or a trust agreement prior to death. In case you are faced with such a situation, a Phoenix probate attorney at Morris Hall PLLC explains what happens if someone passed away without a Will or trust.
What Does It Mean to Die Intestate?
If a decedent left behind a valid Last Will and Testament, the estate left behind is referred to as a “testate” estate. On the other hand, if the decedent failed to leave behind a Will (or a trust that distributes the estate) the estate left behind is referred to as an “intestate” estate. Following the death of a parent, one of the first things you should do is make a thorough search for a Will or trust agreement. Check with other family members, look through files at home and work, and contact your parent’s estate planning attorney to check if your parent executed a Will or established a trust prior to death. If an exhaustive search does not uncover a Will or trust, you will need to proceed with intestate estate administration. The Arizona (or state of the decedent’s residence at the time of death) intestate succession laws will dictate how the estate assets are eventually distributed.
Who Is in Charge of Administering an Intestate Estate?
If the decedent left behind a Will, the person appointed as the Executor in the Will is responsible for initiating and overseeing the probate process. Likewise, if a trust agreement exists, the person appointed as Trustee is responsible for administering the trust. When an intestate estate is left behind, the court will need to appoint a Personal Representative (PR) to oversee the probate process. If you want to be the one to oversee the probate process, you can petition the court to be appointed.
Does the Estate Qualify for Small Estate Administration?
Before worrying about who will administer the estate during formal probate, it is wise to determine if the estate qualifies for small estate administration. In Arizona, a Small Estate Affidavit may be used in lieu of formal probate if either of the following apply:
- The value of all personal property in the estate, less liens and encumbrances, is $75,000 or less and at least 30 days have passed since the decedent’s death. OR
- The value of all Arizona real estate in the estate, less liens and encumbrances, is $100,000 or less at the date of death, all debts and taxes have been paid, and at least six months have passed since the decedent’s death. OR
- You are the surviving spouse and you want to collect up to $5,000 in wages owed to the decedent.
Determining the value of the estate, however, requires you to know what assets are required to go through probate and what assets avoid probate. For example, trust assets bypass the probate process altogether. Do be certain you do not make a costly mistake, check with an experienced probate attorney before deciding that the estate qualifies for small estate administration.
Locating Documents, Identifying Assets, and Notifications
Regardless of what type of probate the estate requires, you will need to gather all relevant estate planning documents, such as life insurance policies, tax records, a Letter of Instruction, and other related documents. Also, make a list of all known assets and the approximate value of the assets. Finally, you will need to notify all legal heirs to the estate and identify creditors. Legal heirs typically include close family members, such as a spouse, parents, children, and siblings.
Consult with a Probate Attorney
If your parent’s estate involves valuable and/or complex assets, the need to consult with an experienced probate attorney is heightened; however, it is a good idea to talk to an attorney even if the estate appears relatively modest to be sure that you know what additional steps need to be taken.
Contact Phoenix Probate Attorneys
For more information, please join us for an upcoming FREE seminar. If you have additional questions or concerns about probating an estate without a Will or trust, contact the experienced Phoenix probate attorneys at Morris Hall PLLC by calling 888-222-1328 to schedule your appointment today.