by Richard Keyt, Arizona probate attorney
What is an Arizona Probate?
This article is about Arizona probate law only. Its purpose to to help people to understand when somebody must open an Arizona probate for the estate of a deceased person who lived in Arizona at the time of his or her death.
Probate is the term that describes a superior court proceeding in which the court appoints a personal representative of the estate of a deceased person who is responsible for the following tasks:
- Finding, collecting and making an inventory all of the assets of the deceased that did not transfer automatically on death and that remain titled in the name of the deceased.
- Paying the last expenses of the deceased, if any.
- Filing the last tax returns of the deceased and paying any taxes (if necessary).
- Distributing the remaining assets to the heirs 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.
That is the Arizona probate in a nut shell. When I represent personal representatives in a simple-uncontested Arizona probate the entire probate process takes about five months and costs $2,000 – $2,500. More complicated estates or contested estates can take longer than a year and be more expensive.
How to Determine if a Probate is Required
Before you can determine if a probate for a deceased person is required, somebody in the family must prepare an inventory of the assets owned by the deceased before and after death. The purpose of the inventory is to determine if there are any assets of the deceased that remain titled in the name of the deceased after death. If the deceased did not have any assets or if no assets remain titled in the name of the deceased then a probate is not necessary unless the purpose of the probate is to give notice to the deceased’s creditors and require them to file a claim with the personal representative or have their claim barred forever.
Make an Inventory of all Assets
Make a list of every asset that has a title that the deceased owned before death. Examples of assets commonly owned by people that may not transfer automatically at death are:
- Real estate
- Bank accounts – checking and savings
- Certificates of Deposit
- Stock of corporations
- Membership interests in limited liability companies – To learn how to cause LLCs to transfer automatically on death and avoid probate, see my article called “Who Will Inherit Your Membership Interest in Your Arizona LLC When You Die?“
- General or limited partnership interests in partnerships
- Investment accounts such as Merrill Lynch, Schwab, Etrade etc.
- Retirement accounts – IRAs, 401(k)s, retirement plans, pension plans, profit sharing plans, etc.
- Vehicles and boats – To learn how to cause Arizona vehicles to transfer automatically on death and avoid probate, see Arizona probate lawyer Abigail Neal’s article called “Transfer Your Vehicles Probate-Free.”
Determine How Assets Were Titled/Held by the Deceased
After you identify all of the assets owned by the deceased at the time of death, you must now determine if the ownership of the account transferred automatically on death or if the account remains in the name of the deceased. Assets that transfer automatically at death to another person, people or entities are not part of the probate estate. The term “probate estate” means assets of a deceased person that remain titled in the name of the deceased after death, including assets that are payable to the estate of the deceased.
Title to Real Estate
To determine how real estate is titled you must get a copy of every deed to real estate that shows how the deceased held title to the land. If you cannot find a copy or original of a deed in the deceased’s records, contact the county recorder of the county in which the real estate is located to obtain a copy of the deed. The title to real estate remains in the name of the deceased if:
- Sole Ownership: The only person named as an owner in the deed is the deceased.
- Joint Ownership: The deceased is the last to die of all the other people who owned the property jointly with the deceased. Property is owned jointly if there are multiple owners named in the deed and the deed states that they own the property as joint tenants with right of survivorship. Example 1: Homer Simpson and Bart Simpson are named on the deed as owning the property as “joint tenants with right of survivorship.” When the first owner dies, the survivor will automatically become the sole owner of the real estate by operation of law. A probate is not needed to transfer the title. In Arizona the survivor should record a death certificate of the first person to die with the county recorder of the county in which the real estate is located. If the deed names more than two joint owners, the interest of every deceased transfers automatically to all the survivors until only one owner remains.
- Tenants in Common Ownership: The deceased owned a part interest in the real estate as tenants in common with one or more other owners. To own land as a tenant in common the deed must state that that ownership is as tenants in common. Example 2: Homer Simpson and Bart Simpson are named on the deed as owning the property as equal “tenants in common.” Whenever a person dies who owns real estate as a tenant in common with one or more other owners a probate is required to transfer the share of the land owned by the deceased to his or her heirs.
Community Property Note: Arizona has two types of community property that apply only to married couples. Arizona has community property and community property with right of survivorship. The difference between these two forms of community property ownership is that community property requires a probate when each spouse dies and community property with right of survivorship avoids probate on the first death, but not the second.
- Community Property Ownership: The deceased and the deceased spouse are the only owner’s named in the deed and the deed says they own the property as community property or the deed does not mention community property ownership, joint ownership or tenants in common ownership and the two people acquired title while they were married. Example 3: Homer and Marge Simpson are named in the deed to their home as owning the property as “community property and not as joint tenants with right of survivorship or as tenants in common.” Two probates will be required and the undivided fifty percent of the real estate owned by each spouse will be required to go through probate.
- Community Property with Right of Survivorship Ownership: The deceased and the deceased spouse are the only owner’s named in the deed and the deed says they own the property as community property with right of survivorship. Example 4: Homer and Marge Simpson are named in the deed to their home as owning the property as “community property with right of survivorship not as joint tenants with right of survivorship or as tenants in common” and both of them signed the deed that contains language that they consent to owning the property as community property with right of survivorship. When the first spouse dies, the undivided fifty percent of the real estate owned by that spouse will transfer automatically by operation of law to the surviving spouse. However, when the surviving spouse dies, his or her ownership interest will be required to go through probate.
Title to Assets other than Real Estate
Assets other than real estate are also owned or titled the same way as real estate except title is not evidenced by a deed that is recorded with a county recorder. You must contact the bank or institution and ask how the account is designated with the institution and apply the same analysis listed above for real estate.
Transfer on Death or Pay on Death Accounts
Banks and financial institutions usually allow the owner of an account to sign and deliver to the institution a document called a “Transfer on Death” (TOD) or “Pay on Death” (POD) designation. The TOD and the POD are the equivalent to a life insurance or IRA or retirement plan beneficiary designation. Ask the institution if the deceased signed a TOD or POD and if so, obtain a copy of the document. When a TOD or POD exists, the account of the deceased will be transfer automatically to the person, people or entity named in the document without the need for a probate provided, however, the beneficiary must be alive at the time of death of the deceased.
Is any Life Insurance Payable to the Estate of the Deceased?
Don’t forget to investigate if the deceased had life insurance. If the deceased was employed at the time of death, contact the employer to determine if the deceased was covered under a life insurance policy provided by the employer. Life insurance is often payable to the estate of a deceased person so it is important to determine if the deceased was the insured under any life insurance policy. Contact every insurance company that insured the life of the deceased to:
- Notify the insurance company of the death.
- Obtain a copy of the beneficiary designation.
Life insurance is payable to the primary beneficiary or beneficiaries named in a valid beneficiary designation signed by the deceased and filed with the insurance company. Life insurance proceeds are payable to the primary beneficiary or beneficiaries named in the beneficiary designatioin who were alive at the time the deceased died and do not go through probate. If no primary beneficiary survived the insured, the proceeds are payable to the contingent beneficiary or beneficiaries who survived the deceased. If the deceased did not have a beneficiary designation or if the deceased out lived all primary and contingent beneficiaries the life insurance proceeds are payable to the estate of the deceased.
The affect of having life insurance payable to the estate of the deceased means that a probate will be required to collect the proceeds from the insurance company and distribute the life insurance proceeds to the deceased’s heirs.
How to Do an Arizona Probate
To learn what is required to conduct and Arizona probate, read my article called “The Arizona Probate Process.”
How to Hire Arizona Probate Lawyer Richard Keyt to Do an Arizona Probate
We make it very easy to hire us to do an Arizona probate. Just follow these simple steps:
1. Get answers to all of your probate questions. Call Arizona probate attorneys Richard C. Keyt, JD, CPA (602-906-4953, ext. 3) or his father Richard Keyt (602-906-4953, ext. 1) if you have any questions about Arizona probates. We do not charge for questions about Arizona probates.
2. Sign our Probate Engagement Agreement: Complete this online engagement agreement, print the document then have the prospective personal representative sign it and mail it to Richard C. Keyt, JD, CPA, 3001 E. Camelback Road, Phoenix, AZ 85012.
3. Send a check payable to KEYTLaw, LLC, for $2,500 to Richard C. Keyt, JD, CPA, 3001 E. Camelback Road, Phoenix, AZ 85012.