What You Should Know About Probate in Arizona

1.  What is Probate?

Probate is the court-supervised process of transferring assets from a decedent’s personal name to the heirs.  If the decedent left a will, the probate registrar will examine the will to determine whether it is admissible in court.  Without a valid will, the default state laws will control.

The probate process involves extensive drafting and exchange of legal documents.  Even a very simple probate requires an overwhelming amount of paperwork.  Although standard forms are readily available, the challenge is to learn what forms to complete, how to complete them, and when to use them.  Understanding the probate process is similar to learning a new language.  Perseverance to complete the project is essential.

2.  Can I handle the case myself or with “self-help” forms?

Some of the county courts in Arizona offer “self-help” forms.  This packet of forms is more than 1 inch thick, and some of the forms are not needed in each case, while in other cases some forms not contained in the packet may be needed.  Most people who are unfamiliar with the process will find the “self-help” forms to be complicated, confusing and overwhelming.  This firm has had people who come in for help after filing the case when they realize that they just can’t get through it without an experienced professional.  In most of these cases, they have filed the wrong papers or have filed papers that were not necessary, thereby complicating the case and resulting in more legal fees than would otherwise have been incurred.

3.  When is a probate action required in Arizona? 

Under Arizona law, the general rule is that if the decedent owned more than $75,000 of equity in real estate, or more than $50,000 of personal property (including physical possessions and money), then a traditional probate is required to transfer the assets to the heirs.  However, there are numerous exceptions to this rule.  For example, if an asset is titled “joint tenancy with right of survivorship,” the surviving owner inherits the property without probate.  Other exceptions include assets titled in trust name or assets subject to a beneficiary designation.  If the decedent owned assets subject to probate, but their value is less than the minimum amount noted above, simpler affidavit procedures may be used to transfer the assets.

4.  What is the process for opening a probate?

The initial application seeks to identify and appoint a personal representative.  This person will be responsible for administering the probate.  The probate process begins with the filing of an application with the probate court in the decedent’s last county of residence.   The application is accompanied by an assortment of other forms prescribed by the court.  The personal representative may be required to post a bond, unless waived in the will or by all the heirs.

When the application is submitted, the initial objective is to obtain a certified copy of the Letters of Personal Representative from the probate court.  The term is a strange one considering the typical meaning of the word “letter.”  This is a good example of what makes probate confusing.

What type of probate case is required depends initially on whether the decedent executed a valid will.  If there is no will, the case must be filed under different rules dealing with “intestate” estates (meaning, decedent died without a will).   Special rules apply if more than 2 years has passed since the decedent’s death.

5.  What are the steps in a typical Probate?

Step 1:  Initiate Probate and Appoint Personal Representative

Submit application; submit bond or waivers of bond; obtain Letters of PR

Step 2:  Notify Heirs, Devisees, and Creditors

Publish notice; notify known creditors; send notices to each devisee and heir

Step 3:  Inventory the Estate

Prepare inventory in approved format; title all estate property in name of estate

Step 4:  Manage Claims

Pay valid debts; send out notices of disallowance (if necessary)

Step 5:  Distribute the Estate

Determine who the heirs are; transfer assets to heirs using appropriate method

Step 6:  Close the Estate

Prepare final accounting or waiver of accounting; file closing statement

6.  What is the difference between formal and informal probate?

Most probate actions in Arizona are “informal,” which means they are completed with minimal court supervision.  No visits to the courthouse are necessary and there will not be a judge overseeing the personal representative’s every move.  A small number of probate actions are “formal,” which involve stricter notice requirements, court hearings and increased supervision.  Formal probates are reserved for cases when there is controversy surrounding the validity of the will, choice of personal representative, or identification of heirs.

7.  How much does a typical probate cost?

The initial filing fee for an informal probate in Arizona is between $200 and $300 depending on the county.  There are additional costs and expenses for publications, recordings, appraisals, and tax filings.  An estate attorney will usually agree to handle an uncontested, informal probate from start to finish for about $2,500 to $3,500.  The majority of law firms use hourly rates to calculate the fee, but an increasing number are switching to fixed fee pricing structures.  A formal probate will be much more expensive.  Hourly rates are used to calculate the fee because the amount of legal work involved is hard to predict at the beginning.

8.  How long does probate take?

The minimum time is 4 months because that is the statutory time in which creditors can make claims and heirs can contest the will or the appointment of the PR. The average time for probate is about one year.    Many cases drag on for much longer.  This firm has been involved in cases that last many years.  One case opened in 2003 is still ongoing!

9.  Am I responsible for the decedent’s debts?

In most cases, heirs do not inherit debts in Arizona.  These debts may reduce the amount of inheritance you receive, but cannot be collected against you personally unless you were also a borrower or debtor in your own name.  For example, if the decedent is your spouse and you shared the same credit cards, then you may have to pay the bills or debt of your spouse. However, if the credit card or account was opened solely under your spouse, then you may not be liable.  Please contact us for more information on whether you are liable for the decedent’s debts or obligations.

1.  What is Probate?

Probate is the court-supervised process of transferring assets from a decedent’s personal name to the heirs.  If the decedent left a will, the probate registrar will examine the will to determine whether it is admissible in court.  Without a valid will, the default state laws will control.

The probate process involves extensive drafting and exchange of legal documents.  Even a very simple probate requires an overwhelming amount of paperwork.  Although standard forms are readily available, the challenge is to learn what forms to complete, how to complete them, and when to use them.  Understanding the probate process is similar to learning a new language.  Perseverance to complete the project is essential.

2.  Can I handle the case myself or with “self-help” forms?

Some of the county courts in Arizona offer “self-help” forms.  This packet of forms is more than 1 inch thick, and some of the forms are not needed in each case, while in other cases some forms not contained in the packet may be needed.  Most people who are unfamiliar with the process will find the “self-help” forms to be complicated, confusing and overwhelming.  This firm has had people who come in for help after filing the case when they realize that they just can’t get through it without an experienced professional.  In most of these cases, they have filed the wrong papers or have filed papers that were not necessary, thereby complicating the case and resulting in more legal fees than would otherwise have been incurred.

3.  When is a probate action required in Arizona? 

Under Arizona law, the general rule is that if the decedent owned more than $75,000 of equity in real estate, or more than $50,000 of personal property (including physical possessions and money), then a traditional probate is required to transfer the assets to the heirs.  However, there are numerous exceptions to this rule.  For example, if an asset is titled “joint tenancy with right of survivorship,” the surviving owner inherits the property without probate.  Other exceptions include assets titled in trust name or assets subject to a beneficiary designation.  If the decedent owned assets subject to probate, but their value is less than the minimum amount noted above, simpler affidavit procedures may be used to transfer the assets.

4.  What is the process for opening a probate?

The initial application seeks to identify and appoint a personal representative.  This person will be responsible for administering the probate.  The probate process begins with the filing of an application with the probate court in the decedent’s last county of residence.   The application is accompanied by an assortment of other forms prescribed by the court.  The personal representative may be required to post a bond, unless waived in the will or by all the heirs.

When the application is submitted, the initial objective is to obtain a certified copy of the Letters of Personal Representative from the probate court.  The term is a strange one considering the typical meaning of the word “letter.”  This is a good example of what makes probate confusing.

What type of probate case is required depends initially on whether the decedent executed a valid will.  If there is no will, the case must be filed under different rules dealing with “intestate” estates (meaning, decedent died without a will).   Special rules apply if more than 2 years has passed since the decedent’s death.

5.  What are the steps in a typical Probate?

Step 1:  Initiate Probate and Appoint Personal Representative

Submit application; submit bond or waivers of bond; obtain Letters of PR

Step 2:  Notify Heirs, Devisees, and Creditors

Publish notice; notify known creditors; send notices to each devisee and heir

Step 3:  Inventory the Estate

Prepare inventory in approved format; title all estate property in name of estate

Step 4:  Manage Claims

Pay valid debts; send out notices of disallowance (if necessary)

Step 5:  Distribute the Estate

Determine who the heirs are; transfer assets to heirs using appropriate method

Step 6:  Close the Estate

Prepare final accounting or waiver of accounting; file closing statement

6.  What is the difference between formal and informal probate?

Most probate actions in Arizona are “informal,” which means they are completed with minimal court supervision.  No visits to the courthouse are necessary and there will not be a judge overseeing the personal representative’s every move.  A small number of probate actions are “formal,” which involve stricter notice requirements, court hearings and increased supervision.  Formal probates are reserved for cases when there is controversy surrounding the validity of the will, choice of personal representative, or identification of heirs.

7.  How much does a typical probate cost?

The initial filing fee for an informal probate in Arizona is between $200 and $300 depending on the county.  There are additional costs and expenses for publications, recordings, appraisals, and tax filings.  An estate attorney will usually agree to handle an uncontested, informal probate from start to finish for about $2,500 to $3,500.  The majority of law firms use hourly rates to calculate the fee, but an increasing number are switching to fixed fee pricing structures.  A formal probate will be much more expensive.  Hourly rates are used to calculate the fee because the amount of legal work involved is hard to predict at the beginning.

8.  How long does probate take?

The minimum time is 4 months because that is the statutory time in which creditors can make claims and heirs can contest the will or the appointment of the PR. The average time for probate is about one year.    Many cases drag on for much longer.  This firm has been involved in cases that last many years.  One case opened in 2003 is still ongoing!

9.  Am I responsible for the decedent’s debts?

In most cases, heirs do not inherit debts in Arizona.  These debts may reduce the amount of inheritance you receive, but cannot be collected against you personally unless you were also a borrower or debtor in your own name.  For example, if the decedent is your spouse and you shared the same credit cards, then you may have to pay the bills or debt of your spouse. However, if the credit card or account was opened solely under your spouse, then you may not be liable.  Please contact us for more information on whether you are liable for the decedent’s debts or obligations.

Small Estate Affidavits are used in Arizona to transfer assets from a deceased person to the heirs when the total value of the assets is below the minimum value requiring a traditional probate.

Under Arizona law, the general rule is that if a deceased person owned more than $75,000 of equity in real estate, or more than $50,000 of personal property (including physical possessions and money), then a traditional probate is required to transfer the assets to the heirs.  A Small Estate Affidavit may only be used when a traditional probate is not required.

2.  How do you transfer real estate by Small Estate Affidavit?

If the entire value of the deceased person’s equity interest in real estate is worth less than $75,000, then each property otherwise subject to traditional probate may be transferred using an Affidavit of Succession to Real Property.

When determining the value of real estate for this purpose, the amount of equity interest is calculated by using the current year’s assessed value for property tax purposes less any outstanding debt.  This amount is usually, but not always, substantially lower than the property’s fair market value.  For example, the fair market value may be $175,000, but the assessed value for property tax purposes only $95,000.

Filing the affidavit is a three step process.  First, the affidavit is filed in the probate court in the county where the property is located, along with a certified copy of the death certificate, and the original will if there is one.  Second, after the court returns a certified copy, the affidavit and a certified copy of the death certificate are published in a newspaper of general circulation in the same county.  Third, the as-filed affidavit is recorded in the county where the property is located.  The recording officially transfers the property to the person or persons identified in the affidavit.

3.  What if the property has an outstanding mortgage?

The typical mortgage document will state any transfer of the property will trigger a due-on-sale clause.  Thus, the beneficiary of property subject to a mortgage should contact the lender before making a transfer using the Affidavit of Succession to Real Property.  The mortgage lender does not have to agree to use of the affidavit procedure.  It may prefer a traditional probate action in order to refinance the mortgage.

4.  What are the problems with using a Small Estate Affidavit for Real Estate?

The main drawback of using an Affidavit of Succession to Real Property is the person using the affidavit must wait six months after the owner’s death before filing it.  Often the better approach – although more expensive – is to apply for informal probate anyway because it can be opened (and closed) before the six month waiting period would have ended.  Using an informal probate will permit a faster closing than using the Small Estate Affidavit.

When filing the affidavit, the signer must also verify that no estate taxes are due and that funeral expenses, expenses of last illness, and all unsecured debts of the owner have been paid.  In some cases – where the home is basically the only substantial asset – this last item may prohibit the use of the Small Estate Affidavit because sale proceeds are needed to pay these expenses first.

5.  How do you transfer cash accounts and cars by Small Estate Affidavit?

The counterpart to the Affidavit for Succession to Real Property is the Affidavit for Collection of Personal Property.  It is a highly useful tool for closing out small accounts and transferring car titles without much hassle; provided the total value of personal property subject to probate is less than $50,000.  Most financial institutions and the DMV will accept it, but not always.  Life insurance companies and banks may still require a full probate proceeding before releasing funds.  This is to protect themselves from liabilities even though Arizona law specifically exonerates them from any liability for accepting a properly done Affidavit.

Unlike the six month waiting period applicable to the Affidavit for Succession to Real Property, the waiting period to use the Affidavit for Collection of Personal Property is only 30 days after date of death.

The Affidavit for Collection of Personal Property is not filed anywhere, but instead is presented to the financial institution or DMV office.  By law, a financial institution is released from liability when it transfers an account to the person or persons identified in a Small Estate Affidavit.

6.  How much does a typical Small Estate Affidavit cost?

An estate attorney will usually agree to handle the process of filing an Affidavit for Succession to Real Property for about $750 to $1,000, plus expenses of several hundred dollars more.

The typical fee for preparation of an Affidavit for Collection of Personal Property is about $250 to $400, with no additional expenses.  Many financial institutions – and the Department of Motor Vehicles – will have pre-printed forms of the Affidavit for Collection of Personal Property available for ready use.

Web site visitors who wish to send initial information to an attorney by e-mail must understand that this information is not yet protected by attorney-client privilege.  Likewise, initial responses to your inquiries are for courtesy only.  Pursuant to attorney ethics rules, the initial exchange of information does not constitute an attorney-client, or even attorney-prospective client, relationship. This relationship can only be entered formally; i.e., with terms in writing.

Legal services are provided by Gregory R. Knight & Associates, P.C., an Arizona professional corporation (doing business as Knight Law).  Gregory R. Knight is the managing attorney.  Knight Law Firm provides legal services to residents of the State of Arizona, and nonresidents with property interests in Arizona.  The physical office of Knight Law Firm is located at 4320 E. Brown Road, Suite 108, Mesa, AZ 85205.  Its eastside Mesa location is especially well-suited for persons residing in the following zip codes:  85201, 85202, 85203, 85204, 85205, 85206, 85207, 85208, 85220, 85219, 85268, 85212, 85213, 85215, 85233, 85234, 85236, 85296, 85248, 85249, 85297, 85553, 85554, 85541 and the following areas: East Mesa, Mesa, Las Sendas, Lehi, Apache Junction, Gilbert, Higley, Tempe, Sun Lakes, Chandler, Fountain Hills, Payson, Tonto Basin.

Web site visitors who wish to send initial information to an attorney by e-mail must understand that this information is not yet protected by attorney-client privilege.  Likewise, initial responses to your inquiries are for courtesy only.  Pursuant to attorney ethics rules, the initial exchange of information does not constitute an attorney-client, or even attorney-prospective client, relationship. This relationship can only be entered formally; i.e., with terms in writing.

Legal services are provided by Gregory R. Knight & Associates, P.C., an Arizona professional corporation (doing business as Knight Law).  Gregory R. Knight is the managing attorney.  Knight Law Firm provides legal services to residents of the State of Arizona, and nonresidents with property interests in Arizona.  The physical office of Knight Law Firm is located at 4320 E. Brown Road, Suite 108, Mesa, AZ 85205.  Its eastside Mesa location is especially well-suited for persons residing in the following zip codes:  85201, 85202, 85203, 85204, 85205, 85206, 85207, 85208, 85220, 85219, 85268, 85212, 85213, 85215, 85233, 85234, 85236, 85296, 85248, 85249, 85297, 85553, 85554, 85541 and the following areas: East Mesa, Mesa, Las Sendas, Lehi, Apache Junction, Gilbert, Higley, Tempe, Sun Lakes, Chandler, Fountain Hills, Payson, Tonto Basin.

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