Probate Process

Probate in Arizona: Frequently Asked Questions

The Law Office of Arnold N. Hirsch is here to help with your Arizona Probate concerns.  We look forward to visiting with you and to address areas where you may have questions and need the expertise of an experienced Arizona Probate Attorney.  Contact us here, or call 480-832-3000 to schedule a consultation.

What is the origin of the word “Probate”?

The word is Latin from the root “probare,” meaning “to prove.” Probate historically included a process where a Court needed to ascertain whether the Will was truly the Will of the decedent, requiring it to be proven authentic.

Probate has since taken on a wider meaning and has become synonymous with estate administration. The estate of a person dying without a Will (dying “intestate”) is administered in court as well as the estate of a person dying with a Will (dying “testate”).

 

Why is a court in charge of estate administration after death?

Property ownership is typically transferred through a signed title over to a new owner. Upon death, it becomes necessary for a court to authorize another individual called a “Personal Representative” to sign transfers of titled property on behalf of the decedent.

For example: In the case of estate administration involving real estate, the court would first appoint a Personal Representative who would then obtain the Letters of Personal Representative. The Personal Representative as part of the final administration process then issues a deed of distribution of the land to whomever is entitled to receive it either under the Will or by Arizona statues. The deed, death certificate, and the Letters are recorded for public record.

 

Are there some kinds of property that do not need Court Estate Administration?

There are many kinds of property that do not require Court Estate Administration. They include:

  • Real property held in joint tenancy with a right of survivorship passing to the surviving joint tenant
  • Real property held in Community Property with a right of survivorship passing to the surviving spouse
  • Insurance policies pass directly to the beneficiary, if one has been designated
  • IRA’s pass directly to a beneficiary, if one has been designated
  • Annuities pass directly to a beneficiary, if one has been designated.
  • Bank accounts held jointly pass to the survivor automatically
  • Bank accounts and securities accounts held as TOD (“Transfer on Death”) move to the designated beneficiary.
  • Bank accounts held as ITF (“In Trust For”) move to the designated beneficiary
  • Property in the name of a Trustee who has been instructed to convey the property from the person who set up the trust to the named beneficiaries of the trust

 

Do all estates need to go through probate?

  1. First, see if the estate contains probate-related property. If the property passes by joint tenancy or beneficiary designation, there is no need for probate.

If there are probate-related assets, look at the amount. If the real property located within the state of Arizona is worth $100,000 or less according to the assessor’s statement at the date of death, the real property can be collected by affidavit. If there is a mortgage balance, subtract the balance from the amount of the assessor’s value. If the resulting amount is less than $100,000, for the real property and the personal property in the estate is worth $75,000 or less, then the assets can be collected by affidavit.  If either the real property or personal property exceeds the limits, then a probate proceeding will be required.

What is Collection by Affidavit?

In the case of real property, you have to wait six (6) months after the date of death or, you can file a regular probate immediately. Once the six months elapse, you can open a court case to ask the court’s Probate Registrar for an order allowing you to record your affidavit with the County Recorder, evidencing a transfer of ownership of the property. This only works in simple cases where the Registrar is clear on who is supposed to inherit the property. The law requires that the affidavit contains a representation that the debts of the estate have been paid, after the statutory allowances for widow and family are met.

Personal property, such as tangible wage claims, automobiles, bank or brokerage accounts, may be collected thirty (30) days after the date of death by presenting an affidavit, provided that the value of all such property does not exceed $75,000.

 

What is the relationship of probate to estate taxes?

There is little relationship between probate and estate taxes. If you own it, it is counted toward computing your tax obligation, whether or not it has to be under a court’s estate administration in order for title to pass to others. However, the person appointed by the court as the Personal Representative of the estate is required to file the estate tax return if one is required. The Personal Representative can also become personally liable for the estate taxes if he distributes the assets of the estate to beneficiaries and fails to pay all or a portion of the tax bill to the taxing authorities.

 

How long does probate take?

If the estate is clear cut and everyone understands the assets and taxes, the estate will likely settle in six (6) months. The Personal Representative, once appointed in Arizona, has immediate authority in ordinary circumstances to transfer some or all of the assets to the estate beneficiaries subject to the payment of all estate debts.

 

What are the duties of a Personal Representative?

The basic duties of a Personal Representative include:

  • Obey Court orders
  • Locate and collect the estate assets
  • Pay the just debts of the estate, including taxes
  • Deal in good faith with estate beneficiaries and account to them
  • Distribute the estate assets as called for in the Will or otherwise by law

 

Is a Personal Representative entitled to be compensated?

The Personal Representative is entitled, by law, to “reasonable” compensation which is usually on an hourly basis. It is vital to keep a record of the dates, description and time of service.

 

Are probate lawyers in Arizona entitled to take a percentage of the estate as the fee for probate?

The probate court has to be satisfied that the lawyer’s fee was reasonable in each case. There is no statute in Arizona that provides an Attorney receives a percentage of the estate.

 

Contact The Law Office of Arnold N. Hirsch for your consultation to solve your probate concerns at (480) 7832-3000