Arizona Probate & Estate Administration
Probate a Will | Probate Planning
Estate Administration | Estate Affidavits
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First and foremost, we are sorry for your loss. Losing a loved one always comes with sadness and grief. During such a difficult time the “what to do next” question can be overwhelming and cause additional stress. You don’t have to do it alone. We are experienced probate lawyers who sympathize with your grief and want to take the legal hurdles off of your plate. We will prepare and file all court documents, attend court hearings and advise you all the way. We make the legal process simple so you can concentrate on your life, your family and your loved one’s legacy.
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How Can We Help You?
We will help you if a loved one has passed and you need to be appointed as the Executor/Personal Representative of the estate. You may be entitled to appointment because you were named in your loved one’s Will or because you have priority to be appointed under Arizona law.
The Personal Representative is responsible for administering the estate, working with the court, gathering the decedent’s assets, paying creditors and taxes and distributing assets to heirs.
Non-probate affidavits, also known as small estate affidavits, are a commonly used tool to gather and distribute a decedent’s assets, including bank accounts and real estate, and transfer the assets to the heirs.
In order to use a non-probate affidavit, the assets must be under certain values. For real estate, the property must be worth $100,000 or less (net after mortgage) and/or $75,000 in personal property.
Some estates may not require probate but some administration may still be required. This includes tasks like administering trusts, preparing non-probate affidavits, working with financial professionals and institutions and transferring jointly held property.
If you are a beneficiary of a Will or Trust and are concerned that Personal Representative or Trustee isn’t fulfilling their fiduciary obligations, call us. We will work with you to ensure your interest as a beneficiary is well represented.
Probate can often be avoided by preparing an estate plan prior to passing. This includes creating a Will, reviewing beneficiary designations, and possibly creating and funding a Revocable Living Trust.
We can create a custom estate plan for you and your family that gives thoughtful consideration to your unique needs and wishes. Call us today to learn more and get started.
Probate Frequently Asked Questions
Probate is a court action that is filed when someone passes away. It includes getting appointed to administer the estate, gathering assets and creating an inventory, notifying heirs and creditors, paying creditors and taxes, and distributing assets to heirs.
We can guide you through this process step by step.
The first step to open probate is to have the court appoint the Personal Representative (“PR”). The PR will then notify heirs and creditors. The PR will then start gathering the decedent’s assets and creating an inventory while keeping careful accounting records. Next, the PR will pay creditors and reimburse any funeral expenses that may have been paid by a loved one. The PR will also need to file the decedent’s final tax return. The PR may then distribute the remaining assets to heirs, provide an inventory and accounting to all heirs and then close the probate.
Some assets, like life insurance, IRA’s and 401k’s, usually don’t require probate. This is because the asset passes to the beneficiary pursuant to a beneficiary designation created by the decedent. This can also include accounts passing subject to a “pay on death” or “transfer on death” designation, or by a Beneficiary Deed.
Assets without beneficiary designations may still avoid probate if the assets are less than $75,000 in personal property and/or $100,000 in real property. If the value of the assets exceed these amounts and there is no beneficiary designation for the asset, probate may be required.
Probate may also be required, regardless of the size of the estate, if the family and heirs don’t get along. If everyone doesn’t get along regarding who should get what, a probate will probably be needed to sort out how the assets will be divided.
The Personal Representative is the “representative” of the estate (called an “Executor” in other states). The PR is responsible for administering the estate, including preparing court filings, gathering the assets owned by the decedent and creating an inventory, paying the debts of the estate, paying any taxes owed and distributing assets to beneficiaries.
Letters of Personal Representative or Letters Testamentary is a document given to the Personal Representative appointed by the court. These Letters demonstrate that the court has given the Personal Representative authority to administer the estate. These Letters are often given to financial institutions, used in real estate transactions, and given to others who require documentation that the Personal Representative is authorized to act on behalf of the estate.
We will obtain your Letters so you can administer your deceased loved one’s estate. We also prepare all other required court filings and documents.
After someone has passed, probate can only be avoided if is required by the nature of the assets and value of the estate.
Before a person passes, they can absolutely create a plan to avoid probate. Probate can be avoided by creating and funding a Revocable Living Trust while paying careful attention to beneficiary designations. By creating a Revocable Living Trust, you will decide how, when and to who your assets are transferred – not state law or the court.
Some of the decedent’s assets may have been titled jointly with you or someone else. In Arizona, the asset is likely titled as “joint tenants” if the owners were not married and “community property” if the owners were married.
Probate may not be required for jointly owned property. If the property has a “right of survivorship” designation after the owner’s names, probate is not required. “Right of survivorship” means that the surviving joint owner inherits the entire account upon the deceased owner’s passing. Probate is not necessary for this asset, but a death certificate may be required.
Property without the “right of survivorship” designation may require probate.
We do not recommend owning property jointly with anyone other than a spouse due to creditor protection and tax concerns.
Upon opening a probate action, the decedent’s creditors will need to be notified by mail and publication. Under Arizona law, creditors then have four months to submit their claims or the claim will forever be barred. The PR will often collect the creditor claims during the four month period, possibly negotiate the amount of the claims and then use estate assets to pay the creditor claims.
The assets of the decedent are usually the only assets subject to the decedent’s debts. In most cases, heirs do not inherit the debts along with the assets of the deceased. While the debts may decrease the amount the heirs receive, typically a creditor cannot pursue the heirs personally for the debt of their loved one.
There are some exceptions to this rule, including if the decedent’s money was owed in a bank account shared with an heir, an heir owned an asset jointly with the decedent, or if one of the heirs guaranteed a debt or obligation of the decedent. In these cases the heir may be subject to the creditors of the decedent.
In Arizona, the following people may serve as Personal Representative (in order of priority):
1) A person specified in a will; 2) a devisee that is a surviving spouse of the decedent; 3) any devisees of the decedent; 4) decedent’s surviving spouse; 5) the decedent’s heirs; 6) the Department of Veterans’ Services (if decedent was a veteran or was the spouse or child of a veteran); 7) a creditor (after 45 days of the death of decedent); 8) a public fiduciary.
A Personal Representative cannot be: 1) under the age of 18; 2) a person whom the court finds unsuitable in formal proceedings; or 3) a foreign corporation.
The first step is to open probate. This includes filing an Application for Probate and Appointment of Personal Representative. The Personal Representative will also need to complete the Personal Representative and Non-Licensed Fiduciary training manuals, carefully review and accept the Duties of the Personal Representative, prepare other initial documents to be filed and pay the filing fee. Upon the court’s acceptance of the initial probate filing, the court will issue Letters of Personal Representative which will enable the PR to administer the estate.
The initial court filing requires a number of different documents and details. We are here to assist you through the initial filing and the administration process.
Yes. Arizona law permits three different types of proceedings: informal, formal and supervised.
The best case scenario is an informal probate. This usually involves estates where everyone gets along and there is no one contesting a Will or who should get what. An informal probate is more like an administrative process, and is quicker and less expensive than a formal or supervised probate.
However, in cases where everyone doesn’t get along or someone contests the validity of a Will, a formal probate may be required. Formal probate is more like litigation with attorneys (and their fees), hearings, motions, discovery, depositions and possibly even a trial.
A supervised probate is a hybrid of an informal and formal probate. While it is generally similar to an informal probate, a judge must oversee and sign off on certain things like selling property or distributing the deceased person’s assets.
Maybe. Some things are easily handled on your own and others may require some additional assistance and guidance.
Assets that were owned with “right of survivorship” typically do not need the assistance of a probate lawyer. In most cases, a death certificate is all that is required to remove the deceased owner from title.
Assets like life insurance, IRA’s and 401k’s should be pretty straightforward as there should be a beneficiary listed on the account. However, filling out the paperwork can be tricky and you may want to consult with an attorney about the tax and creditor protection implications of different options.
Assets without beneficiary designations probably require the assistance of a probate lawyer. If the assets are truly minimal a lawyer may not be required, but in most cases the PR will want to consult with a lawyer. This is especially important where there is family conflict. A beneficiary may also require the assistance of a probate lawyer if they want to be sure the PR or Trustee is fulfilling their fiduciary obligations.
Not all assets are subject to probate. Some of these assets include IRA’s, life insurance policies, 401k’s and other assets that can pass automatically to a beneficiary who’s named in the documents. This also includes real property with a beneficiary deed.
Additionally, Arizona law allows the use of non-probate affidavits to transfer a decedent’s assets if the estate qualifies as a “small estate”. This requires that any real property owned by the decedent is valued at $100,000 (less liens and encumbrances) and/or the decedent’s personal property is valued at $75,000 or less.
If you’re a named beneficiary in a deceased person’s will, or believe you are entitled to inherit but were not named in the will, you may contest the will in probate court if you believe the will isn’t valid. Arizona law provides several circumstances that may render a will invalid. It is best to contest a will as soon as possible before distribution of the estate occurs.
A will can be contested on various grounds. The most common reasons to contest a will are: (1) that it is fraudulent or invalid due either to lack of signature, false pretenses or undue influence; (2) claims that someone was improperly excluded from the will; (3) disputes as to who is the proper personal representative; (4) failure to provide an interested person an inventory of the deceased person’s estate; (5) claims that the PR favors a particular devisee under the will over others who are entitled to take assets under the will; or (6) claims that the PR or others are stealing from the estate or mismanaging or wasting assets.
Please call us to discuss how we can help you contest a will.
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