What is probate?
Have you heard stories of someone trying to avoid probate court after the death of a loved one? It’s not a happy story! The expenses and hassle can be highly stressful…the last thing you need when someone you care about passes away. The legal definition of probate is a court process by which a Will is proved valid or invalid or for decedent’s estates when no Will can be found. It’s the legal process where the estate of a decedent, or the person who has passed, is administered.
Every U.S. state has its own specific laws relating to probate, sometimes referred to as “probate codes”. These laws determine what’s required to probate an estate. When an individual dies without a Will, the laws may be called “intestate succession” laws.
Duties of Personal Representative
In Arizona, if you’ve identified a personal representative in your will, the court will usually honor your request. If the individual isn’t named, is deceased, or is in some way unqualified, the court appoints someone. A personal representative of the estate will be responsible for these tasks:
1. Notifying heirs and devisees of the court proceeding having been established.
2. Finding, collecting and making an inventory all of the assets that did not transfer automatically and that are titled in the name of the deceased.
3. Paying the last expenses of the deceased, if necessary.
4. Filing final tax returns of the deceased and paying any taxes (if necessary).
5. Distributing the remaining assets to the heirs/devisees of the deceased:
a. As provided in the deceased’s Will, or
b. If the deceased does not have a valid Will then as provided in the law of intestate succession of the state in which the probate occurs.
If a Will is simple and uncontested, the probate process takes about 6-12 months. Costs can vary but are generally between $3,500-$5,000.
Ways to Avoid Probate
• Living trusts
In Arizona, you can make a living trust to avoid probate. You’ll need to create a trust document and designate someone to take over as trustee after your death (called a successor trustee). Then — and this so important — you must transfer the ownership of your property to yourself as the trustee. After that’s complete, the property will be controlled by the terms of the trust. Your successor trustee will transfer your property to the trust’s beneficiaries without having to go through probate court.
• Joint ownership
If you own property with rights of survivorship jointly with someone else, then the surviving owner automatically owns the property when the other owner dies. No probate will be necessary to transfer the property, but there will be some paperwork needed. There are two forms of joint ownership available in Arizona—Joint tenancy and Community property with right of survivorship. Discuss your personal needs with an attorney to make sure everything is done correctly.
• Payable-on-death designations for bank accounts
In Arizona, you can add a “payable-on-death” (POD) designation to bank accounts. At your death, the beneficiary can claim the money directly from the bank, without probate court proceedings.
• Transfer-on-death registration for securities
Arizona lets you register stocks and bonds in transfer-on-death (TOD) form. Most people hold brokerage accounts this way. This allows the beneficiary you name to inherit the account upon your death without probate. Speak to your financial advisor to assist you with the paperwork.
• Transfer-on-death deeds for real estate and vehicles
Arizona allows you to leave real estate with transfer-on-death deeds also called beneficiary deeds. Although it doesn’t take effect until your death, you sign and record the deed now. You can revoke the deed or sell the property at any time; the beneficiary you name on the deed has no rights until your death. You can do the same for your vehicles without probate court proceedings.
Taking advantage of these methods will save your loved one’s money as well as the inconvenience of probate court. They also allow you to rest assured knowing that your affairs will be handled in the manner you desire.
You can get more detailed information here, or call the Law Offices of Arnold N. Hirsch at 480-832-3000 for a consultation. With over 35 years of experience in Arizona law, we’ll be there to make sure your wishes are carried out in the way you prefer.