Probate Process Overview

Introduction

If you are a resident of the state of Arizona or the loved one of someone who is, you need to have a basic understanding of the probate process and how it may apply to you, either now or in the future. It is not enough to hope for the best – you need to prepare for the distribution of your assets, the care of your minor children and other aspects of your life. The state of Arizona provides its residents with a number of probate options, and a range of shortcuts designed to make the process easier for all involved. There are three basic ways in which an estate can be probated in the state of Arizona – formal, informal and supervised. Each form of probate has its own unique set of rules, and it is important to understand the differences in order to choose the best option.

Will Probate Be Required?

Some estates may not require probate at all, while others may qualify for a simplified form of probate. There are many types of assets that do not need to go through the probate process at all. These excluded assets pass automatically to the new owner, without any oversight from the probate court.

Some of the assets that do not require probate include:

• Assets held in a living trust – Living trust assets are not included in the probate estate.
• Joint tenancy process – Property held in joint tenancy is also exempt from the probate process. These assets could include the family home, a joint bank account and other assets. In the case of joint tenancy, the assets automatically pass to the surviving owner, who then becomes the sole owner of the property.
• Community property — Since Arizona is a community property state, any property with a right of survivorship does not have to go through the probate process. That means a married couple would be able to add the right of survivorship to any community property they own and shield those assets from probate.
• Bank accounts that are payable on death – Payable on death bank accounts automatically pass to the beneficiary named on the POD form, without the need for probate.
• Assets covered by a transfer on death form – Assets named on a transfer on death form automatically pass to the beneficiary named on the TOD form, with no probate required.
• Real estate covered by a transfer on death deed – The owner of real estate in Arizona can avoid probate by executing and recording a transfer on death deed, allowing the property to automatically go the designated TOD beneficiary.
• Contracts – As long as there is a beneficiary specified, agreements like annuities and life insurance policies do not require probate. The payment for these contracts automatically goes to the designated beneficiary.
• Retirement accounts – The funds in a retirement account do not have to through probate in the state of Arizona. As long as there is a designated beneficiary, probate can be avoided.

Probate Shortcuts

In addition to the exemptions outlined below, the state of Arizona also provides residents with a number of shortcuts. These shortcuts are designed to make the probate process faster, easier, and less expensive. The beneficiaries of a small estate may be able to claim the inheritance they have coming by using a procedure known as the small estate affidavit. This simplified procedure requires beneficiaries to complete a simple form, attach a death certificate and present the completed documents to the institution currently holding the asset.

There are some requirements for the small estate affidavit process. In order to use this process, the estate in question must meet the following criteria:

• The total value of the personal property in the estate must be less than $75,000
• Beneficiaries must wait a minimum of 30 days after the death
• The estate must not be going through the formal probate process

The rules governing real estate and the small estate affidavit are similar, and they include:

• The total value of the real estate portion of the estate must be less than $100,000
• The beneficiary must wait a minimum of six months following the date of death
• There cannot be a court-appointed personal representative
• All unsecured debts and funeral expenses need to have been paid
• There cannot be any estate tax due

Simplified Probate for Small Estates

Smaller estates may quality for a simplified form of probate in the state of Arizona. In order to qualify for this simplified probate process, the total value of the property, less any mortgages and liens, must be less than the total of:

• The expenses of administration
• Reasonable funeral-related expenses
• Reasonable final medical expenses for the deceased individual
• A reasonable sum of money used to support the spouse and children of the deceased person, and
• The value of property deemed exempt from creditors

Following the distribution of the assets in the estate, the individual appointed by the court, also known as the personal representative, or PR, can close out the estate simply by filing a simple petition with the court.

Types of Probate

The state of Arizona has provided residents with a number of ways to avoid probate, but if probate is required, there are three distinct categories. Those categories are:

• Informal probate – The informal probate process is the easiest type of probate. Informal probate is used when there is a valid will and that will has not been challenged. In informal probate, the court-appointed personal representative (PR) can administer the estate with little supervision from the court. A.R.S. § 14-3302.
• Formal probate – In the formal probate process, the court must resolve the legal issues involved in the estate, like the validity of the will if the document is contested, or if there is a dispute over the appointment of the personal representative. A.R.S. § 14-3401.
• Supervised probate – Some estates in Arizona will require supervised probate, meaning that the court will oversee every part of the probate process. From beginning to end, the court must approve every step in the supervised probate process, and this can greatly extend the length of time the process takes. In supervised probate, the personal representative (PR) must ask the court before paying creditors, distributing assets and performing other actions related to the estate. Supervised probate may be requested by anyone who has an interest in the estate.

The Probate Process

In the state of Arizona, the probate process begins when the individual who wishes to be appointed PR files the will and the petition with the probate court. The court will then appoint that individual as personal the executor of the estate, unless there is a sound reason that the individual should not be named personal representative. If there is no will or the will does not specify a PR, the probate court will use state law to determine which individual should be appointed. If the deceased was married, the surviving spouse will be first on the list of potential PR candidates.

During the next step in the probate process, the court will determine the validity of the will and then present the personal representative with what is known as letters of administration. This is an official document that verifies the right of the personal representative to manage the estate. The personal representative will then notify the inheritors of the estate and any creditors about its administration. The PR has 30 days from the date of death to notify the inheritors, and they must publish a notice to creditors in the local newspaper for a period of three weeks. In addition, the personal representative is required to mail notices to all known creditors of the estate, and creditors have four months from the date of the written notice to file their claims. Known creditors of the estate are able to make claims within 60 days if they received a mailed notice, even if that filing is outside the established four month period.

After filing the notice, the personal representative handling the estate will gather all the assets, inventorying, managing and protecting those assets throughout the process. Once all the creditors have been paid, the PR then distributes the assets in the estate to the beneficiaries. Once the beneficiaries have been paid, the estate is closed. The closing process involves the PR filing a petition with the court. Understanding the probate process is very important for every Arizona resident. The state has worked hard to simplify the process, but a thorough understanding of how probate works and what it involved is still a necessity.

Call Our Probate Team at (480)467-4365 to discuss your case today.