It’s likely many people have heard a myriad of things about probate, but especially, that they must avoid it! While that’s absolutely true if you live in certain states—California being one of them—the probate process in Arizona is not that terrible, relatively speaking.
You may still be wondering what probate is and why should you try to avoid it. In simple terms, probate is the process ensuring expenses and debts of the deceased person are paid and transferring legal title to the rightful heirs.
Probate is an often complicated, time-consuming, costly, and, sometimes, emotional process, particularly when they feature bickering relatives who choose to air dirty laundry by divulging family secrets and disputes. In addition, probate is PUBLIC: anyone can look at the documents filed with the probate court. If you don’t want your affairs known to the world, you should talk with an estate planning attorney about the best options for avoiding probate.
Proper Estate Planning to Bypass Probate
In Arizona, you can completely avoid the probate process even without using a trust! That’s not true of every state, but here, there are some fairly simple steps you can take to efficiently pass your estate at your death.
Assets that are held in joint ownership, have a beneficiary, or that are owned by a trust, all avoid the dreaded probate process. Your goals, the number of beneficiaries you want to receive your assets, the ages of your beneficiaries, the types of assets you have are all considerations to be addressed. Knowing which approach is right for you is best determined in consultation with your estate planning attorney.
How Probate Cases Start
In probate, the court acts as an advocate for the interests of individuals who are no longer with us. In Arizona, probate falls under Title 14 of the Revised Statutes, which also deals with matters related to estates and trusts and has its own unique laws and processes. Familiarizing yourself with Arizona probate law and how the probate process works can help you and your loved ones be better prepared should your estate need to enter probate.
If You Must Go Through Probate
As a beneficiary, heir, creditor, or claimant, there are several probate court options that Arizona law permits:
Small Estate Affidavits can be used in some situations. If the total value of all personal property, less liens and encumbrances, is $75,000 or less, assets of the estate can be collected using this simplified process. Personal property includes bank accounts, investments, life insurance, vehicles, and the like. Liens and encumbrances include mortgages, pledge, or other security interests. PRO TIP: the person signing the affidavit is attesting that he/she is the person entitled to the property—meaning they are the person designated in the Will as the beneficiary. If there are people with equal or greater rights to the property, they all have to assign their entire interests in the estate to the Affiant in writing, and such assignments have to be attached to the Affidavit for Collection of Personal Property.
There is also a small estate process for real property with a value of $100,000 or less, but the Affiant must wait until 6 months after the death of the owner to collect the property using this approach, which may not be in the best interest of the estate or the heir.
Informal Probate is used when there is a Will that is unchallenged, which simplifies the probate process and allows the personal representative appointed by the court to administer the estate with minimal court supervision.
Formal Probate is used to resolve an estate’s legal issues; for example, when an original Will is not available, when a Will is contested, or when the role of personal representative of an estate is in dispute. This process is much more complicated, sometimes requiring lengthy and costly proceedings that take an emotional toll on family members.
Supervised Probate requires the court to oversee every aspect of the probate process. The personal representative must seek approval from the court to take any action when distributing estate assets. This type of probate is typically used when it is necessary to protect a creditor, beneficiary, or other entity or person with interest in the estate. Legal representation and court costs in supervised probate cases often end up depleting the value of the estate, which is a major reason you want to avoid probate in Arizona altogether.
Understanding the law and the probate process in Arizona is only half the battle. Working with an estate planning attorney to ensure your estate is administered as efficiently as possible is paramount to protecting your legacy. Empowered Legacy Planning is an experienced probate attorney in Tempe, AZ. Contact us if you need expert and tailored probate guidance, or for any other estate planning needs.