Family Law FAQ
Almost everyone leaves some assets behind when they pass away. Some people plan extensively for the distribution of their assets when they’re gone, while others leave little instruction behind. The process of determining the distribution of assets after someone’s passing is called probate. Whether there was a will or not, legal assistance can help tremendously when going through this process.
We can help those in charge of the estate to properly handle the estate’s business and comply with Arizona probate law. In many cases, when there was careful planning, it will be a straightforward process. In cases where there was limited planning, certain issues need to be sorted out, and we can help you do this to everyone’s satisfaction. This includes determining legal obligations left by the deceased.
You should know that every case is a little different, so there is no standard answer to this question. However, Arizona law provides some guidance that will help you prepare for an approximate length of time for probate. When a personal representative is appointed in your probate case, they’re required to send out an official notice to all creditors who may have a claim on the estate. This official notice, known as the Notice to Creditors, allows creditors the chance to assert their rights.
In addition to the notice, the personal representative is required to run an official notice in the local newspaper for three consecutive weeks. Creditors then have a four month period in which they can file a claim, with the claim clock starting when the first newspaper notice is filed. This means that if the personal representative acts very quickly, the process can be done in a little more than four months. In most instances, probate will take more than four months.
Probate is not always required in Arizona, and when it is required is determined by the amount of property being passed. Probate is not required for assets like retirement accounts and life insurance policies that have designated beneficiaries. Beyond that, other items that might otherwise be subject to probate are allowed to pass without probate if they are small enough. Any real property less than $100,000 in value is allowed to pass in this manner. Likewise, if personal property is less than $75,000 in value, it can pass without probate. Amounts larger than those two figures must go through probate.
Probate will be necessary for those people who do not plan ahead prior to their passing. One of the most popular things for people to do to avoid probate is to put all of their assets into a revocable living trust. This way, they move all of the property out of their own name. When they pass away, these individuals own no property, so there is no reason for their loved ones to go through a messy probate process. Proper planning can help avoid probate when a person dies. Probate is not an inherently terrible process, but it is not one that everybody has to go through. The first step is to determine whether any probate-avoidance planning was done in advance.
If a home was titled to a trust or if the decedent executed a beneficiary deed, the home transferred to the trust beneficiary or beneficiary under the deed immediately upon the decedent’s passing. Likewise, with financial accounts, if a payable on death beneficiary is designated or a joint owner is named, the funds in those accounts pass to the beneficiary upon death.
Anything not controlled by a trust or payable on death designation could be subject to probate, but only if the value of these assets exceed a statutorily defined amount. Generally speaking, estates with less than $75,000 of personal property and less than $100,000 of real property can be transferred by affidavit.
You could complete an affidavit attesting to the value of the estate, along with any entitlement to the assets under the will (or the intestacy statute), and submit this affidavit to the financial institution and county recorder to do the transfer without opening probate. You can learn more about the small estate affidavit on the Superior Court’s website, and you probably do not need an attorney to handle this. If there is any ambiguity about the value of the estate or about the prospective heirs, however, it is advisable to seek counsel about your situation.
Unfortunately, simply having a Will in place will not exclude your estate from needing to go through Arizona probate. Will’s have many benefits, including naming a Personal Representative to administer your estate and distribute assets as you have designated, name a guardian for your children, and name a conservator for their assets. Having a valid will place will make the Arizona probate process faster, much less expensive, and will allow you to have greater control over your assets upon your death.
To avoid probate in Arizona, one can take advantage of a number of different elements of the law. It is critical to utilize small estate allowances if you are able to do so. Lawyers can walk you through the options, but people who reduce their estates to a small amount can avoid going through probate. In some instances, this can be done through gifting of property during the later years of your life. On top of that, trust options are available for people who absolutely want to spare their family members the expense and complication of going through probate.
As there are numerous variables in the probate process, the total cost will vary case by case. There are certain costs of probate that are a constant, while others can apply in only some cases and not others. The constant costs include the court filing fee and the cost to post the Notice to Creditors in the newspaper. The court filing fee for the Maricopa County Superior Court is $268 and placing the ad in the newspaper will likely cost $50-$75. The variable costs come in the form of attorney’s fees, compensation for the personal representative, and the cost to obtain a bond, if required.
Depending on the amount of planning that the deceased did beforehand will be a strong indicator of the cost of probate. The cost does not necessarily correlate with the amount of money the deceased had. Understanding your options will help you make the right choice for your family and not spend more than in necessary.
A very common question in child support cases is; Does child support increase with age? The technical answer is no, as a child increases in age child support does not increase with it. However, there are circumstances in which the amount of child support being paid monthly can increase.
In Arizona, the amount of child support does change to reflect the associated costs of raising the child. The law also recognizes the circumstances of the parent and the child, which in many cases, does result in increased costs. But everything depends on the details of the situation. There is no automatic increase or decrease in payments. All of the changes in payments are regulated by the court.
If a valid will in Arizona designates a specific person to receive an asset, then that person receiving the asset is referred to as a devisee. While an heir is someone who, according to Arizona’s law of intestate succession A.R.S. § 14-1201(13) and (23), is entitled to receive property from the decedent.
Marriage is considered one of the most sacred and special ceremonies that can be performed. For many, it is the best day of their lives, along with the birth of children and other momentous events.
However, often times the thought of what a marriage will be like doesn’t quite add up to what the actual marriage ends up being like, leading to divorce. Quite regularly, people will have two or more marriages throughout their lives (According to the US Census Bureau, in 2012, 28% of married men and women in Arizona had been divorced and remarried). This raises the question and main focus of the article, how soon can you get married after a divorce?
Not all cases require a bond, but the amount required will vary from case to case. A testator can specify an amount for the bond in their will, and this will determine the amount required for the probate process. If the testator does not specify an amount, the court will determine the amount of the bond. This figure is determined by the sum of the following information (provided to the court by the personal representative):
the value of the decedent’s personal estate
the value of the decedent’s real estate (less encumbrances)
all expected income from the personal estate and real estate (less encumbrances)
This sum will give you a general estimate of what the bond amount will be for your probate case. Keep in mind that the personal representative or an interested party can petition the court to reduce the bond, waive the bond, or make any adjustments at their discretion. A.R.S. § 14-3604.
Probate is not an inherently bad process, but many people find that using other means of transferring their estate property is advantageous. For instance, avoiding probate may provide people with certain tax advantages. Furthermore, people who work with an Arizona trust lawyer to establish alternative means of transferring their property can generally speed up the process by which their assets transfer to their beneficiaries.
A will that was completed outside of Arizona can be valid in Arizona, so long as the will either: adheres to A.R.S. § 14-2503, or if the signing complied with the laws at the place of signing. This means that as long as the will was created in accordance to the laws governing the area where the will was created, then Arizona will accept it as a valid will. A.R.S. § 14-2506.0
Formal Arizona probate, also referred to as a formal testacy proceeding, includes litigation in the Arizona Superior court in order to determine if a valid will was in place at the time of death. This proceeding is initiated, generally by an heir or interested party, to confirm the validity of the will. This interested party will file a petition and all other probate proceedings will be placed on hold until the formal probate proceeding is completed. Any interested party can file the petition for formal probate, even if an informal probate has been opened previously. A.R.S. § 14-3401.
The primary purpose of formal probate is to have the Arizona superior court determine whether the person left a valid will. In some cases, a will can be disputed by one or more interested parties. In formal probate, the court holds fact-finding hearings to determine the nature of the estate and what should be done to ensure equity moving forward. In some cases, formal probate will be used to invalidate an informal process that is suspected of denying justice to some interested party.
Informal probate is an easier, quicker, and cheaper option for people who meet certain conditions. It takes place in the Arizona Superior Court, and it is overseen by a registrar. Because the process has less formality, it can be finished quicker than more formal probate processes. While informal probate is final in most instances, it can be superseded by a formal testacy filing if there happens to be a dispute that should be sorted out in a more involved manner.A.R.S. § 14-3302
Who has the ability to initiate Informal Probate?
Informal probate can be initiated by the following people:
An heir of the deceased
An immediate family member of the deceased (brother, sister, mother, adult child, etc.)
Creditors (at least 45 days after the death)
Public Fiduciary (under certain circumstances)
Department of Veterans’ Services (if the deceased was a veteran)
Supervised probate is a process that provides a middle ground for people who do not necessarily want to go through a formal court process. The court will oversee the personal representative, providing instructions on what to do. The administration of the estate is left to the administrator, however. The court will have some say in the proceedings and will monitor what the representative is doing, though the case will not be subject to formal proceedings as with formal probate.
According to A.R.S 14-2502, in order for a will to be valid under Arizona law, the person making the will must be at least 18 years of age, must be competent at the time of signing, and must have understanding of the implications of the will. In addition, there must be two witnesses to the signing of the will. Each must either witness the signing or be told by the will maker that he or she signed it.
Arizona law allows for people to prove their own wills, so there does not have to be an independent verification as long as the written will has followed all of the necessary conditions. It is possible that a will can be challenged, but without a challenge, it is possible to enter probate with a so-called “self-proved” will.
A hand-written will is valid in the state of Arizona, so long as it meets the requirements outlined in A.R.S. § 14-2503. This means that although the will does not meet the requirements outlined in A.R.S 14-2502, so long as it meets the requirements of A.R.S. § 14-2503. Being hand-written does not invalidate the will, if the entire will/material provisions are in the testator’s handwriting and is signed by the testator. This type of will is referred to as a “holographic” will. Any additions in other handwriting are cause for concern and investigation into the validity of the will.
The personal representative is the person who has the responsibility to administrate the estate of the person who has died. This person has the responsibility of filing all necessary notices and overseeing the process. While personal representative is the name most commonly used, administrator and executor are also used to describe this important functionary.
Yes, according to Arizona probate law Personal Representatives are entitled to receive reasonable compensation for their services regarding the probate matter. A.R.S. § 14-3719. If the will designates a specific amount to be paid to the Personal Representative which is unreasonable, then the Personal Representative can renounce that provision and allow the court to deem a reasonable payment amount. If the Personal Representative does not wish to be paid for their services, they can renounce their right to receive any compensation.
According to Arizona law, A.R.S. § 14-3801, the personal representative in a probate case is required to notify creditors of the death of the testator and inform them of their appointment as Personal Representative over the estate. The Notice to Creditors will also contain the address of the Personal Representative to allow creditors to make claims against the estate for any money they are owed. Note that the creditors only have four months to submit their claim after the published notification, or they are forever barred from making a claim against the estate.
The notifications must adhere to strict regulations. An ad must be taken out in the newspaper meeting the following criteria:
Ad must be published once per week
Ad must run for three successive weeks
Ad must be run in a newspaper for general circulation that is in the same county as the Probate Court
The personal representative must also give notice via written mail or other delivery service to ALL creditors to inform them of their appointment as Personal Representative and notify them of the four month timeline.
Arizona probate has jurisdiction over specific assets called “probate assets.” The court does not have the jurisdiction nor the power to distribute assets that are not considered “probate assets.” “Probate assets” include property and assets (including intangible assets) that the decedent had an interest in at the time of their death AND did not transferred legally or via contract to another person or entity.
The decedent must have an interest in the asset for it to be counted as a “probate asset.” Even if the decedent gives away rights to an asset the day before their death, the asset can not be included as a “probate asset” unless ownership was not properly transferred.
Property will be transferred according to legal precedence. Any assets held by the decedent on the day of their death will be distributed in three ways:
- Operation of law- Assets are transferred automatically by law in certain cases, e.g. joint tenancy, community property with right of survivorship, or real property subject to a beneficiary deed.
- Contractual obligations- Certain contracts have an at death clause that names a beneficiary in the event of the contract holder’s death, these contracts include:
Life insurance policies
Retirement plan benefits
If the contract does NOT include a beneficiary, then the assets are subject to probate.
- Arizona probate assets that are not automatically transferred upon death via operation of law or through a contract will be subject to probate. A.R.S. § 33-431(B) and (C).
There are certain assets that transfer immediately to named beneficiaries upon the owner’s death. For instance, jointly owned property, pension plans, trust assets and life insurance policies all transfer to named beneficiaries without having to go through the Arizona probate process. But, because Arizona is a community property state, sometimes even dividing non-probate assets is relatively complicated.
Community property is property that the law deems as belonging to the marital estate. The law presumes that any wages or earnings accumulated during a marriage are community property. Upon the death of either spouse, the community property is equitably divided, so that each spouse takes about one-half of the community property. Because of Arizona’s strong presumption favoring community property, life insurance policies are typically considered as belonging to the marital estate.
When a married individual passes away with a life insurance policy, his or her spouse may be entitled to a share of that policy’s proceeds, regardless of whether that spouse is named as the beneficiary. How much of those proceeds the spouse may be entitled to depends first on whether the policy is whole or term. If the policy is a whole life insurance policy, the spouse is entitled to a prorated share based on when the policy was purchased relative to when the couple got married. If the policy is a term life insurance policy, however, if the last payment was made during the couple’s marriage, it is deemed community property.
A variety of factors determine what happens to a person’s estate when she passes away, including the size of the estate and whether the person made advance preparations. A person who uses legal planning tools, such as a trust, can ensure that planned for property passes immediately to beneficiaries. Where a person makes no advance preparations, on the other hand, Arizona probate law most times requires her property to go through probate before passing on to her beneficiaries.