Introduction
Probate is the legal process of executing a decedent’s will, settling their liabilities, distributing their individually-titled assets, and closing their estate. Probate can be a long and costly process, but the good news is that probate isn’t always necessary. Assets that have a designated beneficiary can transfer ownership automatically outside of probate, and estates with no valuable assets don’t need to go through probate if there’s no property to transfer.
Assuming probate is necessary, there can be a number of consequences for not petitioning to open probate:
- Individually-titled assets will remain frozen in the decedent’s name
- The estate’s assets are subject to losses
- Another interested party may petition to open probate
- The decedent’s creditors may take action
- The state can seize unclaimed assets
- The party in possession of the will may be held personally liable
Individually-Titled Assets Will Remain Frozen in the Decedent’s Name
While assets with a designated beneficiary can seamlessly transfer ownership outside of probate, assets that are titled solely in the decedent’s name require a court order to transfer the title. Absent a court order, these assets will remain frozen in the decedent’s name until the assets are eventually foreclosed, repossessed, or seized. Even if a rightful heir takes possession of the assets (e.g. moves into the house, takes the car), the heir wouldn’t legally own the assets.
The Estate’s Assets are Subject to Losses
When an estate’s assets are left to languish, losses are almost inevitable. Houses and property that aren’t properly cared for can become blighted and lose market value, and if nobody pays the mortgage the bank may repossess the property. Unoccupied houses are frequently targeted by burglars, as are unattended vehicles left in the driveway.
Vehicles that are left on the street for too long may be ticketed and towed, and the bank will repossess vehicles that are behind on monthly payments. Stocks, bonds, and mutual funds are susceptible to market swings, and bear markets can slash an account’s market value by over 20%. All of these scenarios result in fewer assets available to the beneficiaries, and if the court determines they are the result of gross negligence, the party in possession of the will may be held liable.
Another Interested Party May Petition to Open Probate
Any interested party to an estate has the right to petition to open probate. If the decedent left a will, that includes the beneficiaries; if the decedent died intestate (without a will), then the estate’s legal heirs can open probate. Even non-family members can open probate if they’re listed as beneficiaries in the will, or if they have intertwined business interests.
The Decedent’s Creditors May Take Action
Creditors have two years to file a valid claim against a decedent’s estate if probate hasn’t been opened. If the estate’s beneficiaries and heirs fail to take action, the decedent’s creditors can file a petition to start the estate settlement proceedings. Creditors will normally file a petition for administration and serve notice of the probate hearing to the decedent’s heirs, usually in the hope that a family member will either come forward with the will or take on the responsibility of being the estate’s personal representative. If no family members are available or willing to take action, the court can appoint a third-party special administrator to close the estate.
The State Can Seize Unclaimed Assets
Although it’s rare, the state has the right to seize unclaimed assets that are not covered in a will and that are not claimed by the decedent’s lawful heirs (ARS 14-2105). The state will need to make a reasonable effort to notify and repeatedly reach out to the decedent’s heirs, but if nobody comes forward to claim the assets, the state is under no obligation to hunt down heirs and force them to respond.
The Party in Possession of the Will May be Held Personally Liable
When someone writes a will they usually leave the primary copy with their executor (the person they’ve chosen to be their personal representative when they die). The party in possession of the will is required to submit the will to the county probate court within a reasonable amount of time following the decedent’s passing (usually within 30 days, but up to 120 days in some states). If the executor fails to submit the will, they may be liable to the following action:
- Beneficiaries and heirs who incur damages as a result of the executor’s inaction can file a civil suit to recoup the damages from the executor
- If the court finds that the executor concealed the will for personal gain, the executor may face criminal charges
The Small Estate Exception
If you’re debating whether probate is necessary for a loved one’s estate, keep in mind small estates are exempt from probate in Arizona. As long as the estate has less than $75,000 in personal property and less than $100,000 in real property, the estate can pass to the decedent’s beneficiaries or heirs with a simple affidavit. If real estate isn’t involved the beneficiaries need only wait 30 days to file a small estate affidavit, but if a house or property is involved the beneficiaries will need to wait at least six months to allow interested parties to submit claims on the estate.
Which Assets are Able to Transfer Ownership Without Probate?
Assets that have a designated beneficiary listed on the account can transfer to the beneficiary as soon as the financial institution holding the assets receives a copy of the decedent’s death certificate. The following assets typically allow the owner to list a designated beneficiary:
- Bank and brokerage accounts with a payable-on-death or transfer-on-death beneficiary
- Real estate owned in joint tenancy or as tenants in the entirety
- Retirement accounts (401k, IRA)
- Life insurance policies
- Trusts
Is it Necessary to Probate an Estate That Doesn’t Have Any Valuable Assets?
The short answer to this question is no—an estate with no valuable assets won’t need to go through probate as there aren’t any assets to transfer. That said, there may be benefits to probating an estate without any valuable assets. For example, closing an estate negates the two-year statute of limitations for creditors to submit claims on the estate. You’ll need to open probate for at least 4 – 5 months to give the creditors a reasonable amount of time to submit their claims, but closing the estate to creditor claims can eliminate the risk of a headache down the road if someone comes forward with a valid claim.
Call our Probate team at (480)467-4365 to discuss your case today.