What you should know about Arizona Probate

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.