Small Estate Probate Exemption – Real Property

By , Phoenix Probate Lawyer

Transferring Arizona Real Property Without Probate

If a deceased person owned real property valued at $100,000 or less, a small estate Affidavit may be used to transfer the property.  This means that instead of having to initiate a probate proceeding, if certain circumstances are met a small estate Affidavit may be filed to transfer the property. Arizona Revised Statues § 14-3971(E) states the requirements to transfer real property using a small estate Affidavit:

1. Either:

(a) An application or petition to appoint a personal representative is not pending nor has a personal representative been appointed in any jurisdiction. The value of all real property in the decedent’s estate located in Arizona, less liens and encumbrances against the property, is less than or equal to $100,000 as valued at the date of death. The decedent’s interest in the real property is determined from the value of the property shown on the assessment rolls for the year the decedent died. If the property was subject to any liens or encumbrances (for example a mortgage or deed of trust), the decedent’s interest will equal the value of the property as shown on the assessment rolls less the unpaid balance owed on the property due on the date of death.

(b) A personal representative was previously appointed but has been discharged or a year or more has passed since a closing statement has been filed. In this case, the value of all real property in the decedent’s estate, less liens and encumbrances, is less than or equal to $100,000 as valued as of the date of the Affidavit. The value of the decedent’s interest in that real property is determined from the assessment rolls for the year in which the Affidavit submitted. If the property is subject to any liens or encumbrances, the decedent’s interest will equal the value of the real property shown on the assessment rolls less the unpaid principal balance due except that if a debt is secured by a lien on real property, the value is determined by the unpaid principal balance due on the debt as of the date of the Affidavit.

2. Six months or more must have passed from the date of the decedent’s death. A certified death certificate attached to the Affidavit.

3. All of the decedent’s debts have been paid, including funeral expenses, unsecured debts and any expenses of the decedent’s last illness.

4. The person or persons who sign the small estate Affidavit are entitled to the real property because of:

the allowance in lieu of homestead,

exempt property or family allowance,

the person or persons signing the Affidavit are the decedent’s sole heir or heirs pursuant to the laws of intestate succession,

or pursuant to the Decedent’s valid Last Will & Testament, the original of which is attached to the small estate Affidavit or has been probated.

5. No other person has a right to the decedent’s interest in the described property.

6. No federal estate tax is due on the decedent’s estate.

The person or persons signing the small estate Affidavit must state that all statements in the Affidavit are true and material and acknowledge that any false statement in the Affidavit may subject the person or persons to penalties relating to perjury and subornation of perjury.

The Affidavit may be filed in the court of the county where the decedent lived at the time of death. Alternatively, if the decedent did not live in Arizona at the time of death, then the Affidavit should be filed in the county where the real property is located.

Once the court receives the Affidavit and determines that it is complete, the court registrar will issue a certified copy of the Affidavit, without attachments, and the copy will be recorded in the county recorder’s office where the property is located. Once the Affidavit is recorded the title of the property is transferred to the person or persons listed in the Affidavit.

Hire Powers & Neal to Prepare a Small Estate Affidavit for Transfer of Title of Real Property

Powers & Neal will:

1. Prepare the small estate Affidavit for Transfer of Title of Real Property,

2. Provide you with Assignments of Inheritance Interest (if appropriate),

3. Complete the required Probate Cover Sheet,

4. File the Affidavit in the appropriate county, and

5. Obtain a Certified copy of the Affidavit and record it in the appropriate county.

You will need to provide us with a certified copy of the decedent’s death certificate as well as the original of the decedent’s Will (if applicable). We can tell you how to get the certified copy of the death certificate or obtain it for you for an additional fee.

To hire us to prepare a small estate Affidavit for Transfer of Title of Real Property, call Arizona probate attorney Abigail Neal at (480) 699-7992 to get started.

 

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