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Arizona
Law
Arizona
Probate Law FAQArizona Probate Law - Frequently Asked Questions
by Richard Keyt, Arizona probate attorney
Table of Contents
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What Is Required for a Valid Will Under Arizona Probate Law?
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Is a Will Signed Outside Arizona Valid Under Arizona Probate Law?
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Who Can be Appointed Personal Representative of an Arizona Probate?
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What if the Personal Representative has a Conflict of Interest?
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Can a Spouse Obtain Money Owed by the Decedent's Employer without an Arizona Probate?
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What is the Maximum Amount of Personal Property that Can be Administered without an Arizona Probate?
- Exempt Estate Form Preparation Service
What is Probate?
My 1975 edition of Black's Law Dictionary defines probate as:
"The act or process of proving a will. . . . The proof before a . . . duly authorized person that a document produced before him for official recognition and registration and alleged to be the last will and testament of a certain deceased person, is such in reality. A judicial act or determination of a court having competent jurisdiction establishing the validity of a will. . . . In American law, now a general name or term used to include all matters of which probate courts have jurisdiction."
The term "Arizona probate" means an Arizona Superior Court monitored legal proceeding by which the liabilities and probate assets of a deceased person ("decedent") are paid and administered and the probate assets of the estate are transferred by a personal representative (called administrator, executor or executrix in other states) of the estate appointed by the Court. A.R.S. § 14-3101. This article is a discussion of Arizona probate law only. Probate law in other states may differ from Arizona probate law.
What Does "Testate" & "Intestate" Mean?
If an Arizona resident dies with a Will that complies with the requirements of Arizona probate law, the person is said to have died "testate," which means he or she has a valid Will and the decedent's probate assets pass to the people or entities named in the Will. An Arizona resident who dies without a valid Will dies "intestate" and the decedent's probate assets pass as provided in Arizona's laws of intestate succession found at A.R.S. § 14-2101 et seq. When an Arizona resident dies without a valid Will, Arizona law will determine who gets the decedent's probate assets, which may result in people inheriting property contrary to the decedent's wishes.
What is a Testator and a Testatrix?
A testator is a person who makes a Will. Under Arizona law, a testator can be male or female, but sometimes people use the word "testator" to mean a man who makes a Will and the word "testatrix" to mean a woman who makes a Will. A.R.S. § 14-1201.55.
What is the Difference between a Devisee and an Heir?
A "devisee" is a person designated in a Will to receive a devise, which is a disposition of real or personal property made under a Will. An "heir" is a person, including the surviving spouse, who is entitled to property of a decedent under Arizona's law of intestate succession. A.R.S. § 14-1201.13 & 23.
What Is Required for a Valid Will Under Arizona Probate Law?
For a Will to be valid in Arizona, the Will must be:
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in writing;
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signed by the decedent or in the decedent's name by some other individual in the decedent's conscious presence and by the decedent's direction; and
- signed by at least two people, each of whom signed within a reasonable time after that person witnessed either the signing of the Will as described in paragraph 2 or the decedent's acknowledgment of that signature or acknowledgment of the Will.
Is a Handwritten Will Valid in Arizona?
A Will that does not satisfy the above requirements of A.R.S. § 14-2502 can be a valid Arizona Will if the signature and the material provisions are in the handwriting of the testator (whether or not it is witnessed). This type of Will is known as a "holographic" Will. A.R.S. § 14-2503. Anybody who prepares a holographic Will should write the entire Will in his or her handwriting to prevent any question as to whether the "material provisions" are in the testator's handwriting.
Is a Will Signed Outside Arizona Valid Under Arizona Probate Law?
A written Will is valid if its signing complies with the law at the time of signing of the place where the Will is signed, or of the law of the place where at the time of signing or at the time of death the decedent is domiciled, has a place of abode or is a national. A.R.S. § 14-2506.
What are the Types of Arizona Probate Proceedings?
There are three types of probates in Arizona, informal, formal and supervised. Most Arizona probates are informal because they are usually cheaper in terms of attorneys' fees and quicker. Not all estates, however, are eligible for informal probate. Contested estates are usually resolved in a formal probate, which can include court hearings, depositions, motions, discovery and a trial just as any other Superior Court litigation.
What is an Informal Arizona Probate?
An informal probate is an Arizona Superior Court proceeding overseen by a "registrar," which means a judge, the clerk of the court or a court commissioner designated to oversee and administer informal probates. Because informal probates have the lowest level of court supervision, they generally can be completed for less legal fees and time than formal and supervised probates. An informal probate is conclusive as to all persons until superseded by an order in a formal testacy proceeding. A.R.S. § 14-3302.
Who May Initiate an Arizona Informal Probate?
Any of the following may initiate an informal probate:
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The surviving spouse of the decedent.
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An adult child, a parent, a brother or a sister of the decedent.
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A person who is an heir of the decedent.
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A person nominated as a personal representative by a probated Will or the Will for which probate is asked or pursuant to a power conferred by the Will.
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If the decedent was a nonresident of Arizona, any person who is qualified under paragraphs 1 - 4 above or a personal representative appointed in the decedent's state of domicile or the nominee of the personal representative.
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If the decedent was a veteran, the department of veterans' services.
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Any creditor of the decedent after 45 days after the death.
- The public fiduciary if no person is qualified and willing to serve as personal representative under 1 - 7 above.
What is a Formal Arizona Probate?
A formal probate is litigation in Arizona Superior Court to determine whether a decedent left a valid Will. A formal probate may be commenced by an interested person filing a petition that requests that the court, after notice and hearing, enter an order probating a Will, or a petition to set aside an informal probate of a Will or to prevent informal probate of a Will that is the subject of a pending informal probate. A formal probate may also be filed to obtain a Court order that the decedent died intestate. A petition may seek formal probate of a Will even if the same or a conflicting Will has been informally probated.
During the pendency of a formal testacy proceeding, the registrar shall not act upon any application for informal probate of any Will of the decedent or any application for informal appointment of a personal representative of the decedent. Unless a petition in a formal testacy proceeding also requests confirmation of the previous informal appointment, a previously appointed personal representative, after receipt of notice of the commencement of a formal probate proceeding, must not make any further distribution of the estate during the pendency of the formal proceeding. A petitioner who seeks the appointment of a different personal representative in a formal proceeding also may request an order restraining the acting personal representative from exercising any of the powers of his office and requesting the appointment of a special administrator. In the absence of a request or if the request is denied, the commencement of a formal proceeding has no effect on the powers and duties of a previously appointed personal representative other than those relating to distribution. See A.R.S. § 14-3401.
Who May Initiate a Formal Arizona Probate?
Any interested person may file a petition with the Superior Court to initiate an Arizona formal probate. A petition for a formal probate may be filed even if an informal probate was previously opened. See A.R.S. § 14-3401.
What is a Supervised Arizona Probate?
A supervised probate is a cross between an informal and a formal probate. In general, a supervised probate is similar to an informal probate, except the personal representative cannot enter into an agreement to sell real property or make any distributions without the prior approval of the Court. A.R.S. § 14-3504. In a supervised probate, the personal representative administers and settles the decedent's estate under the continuing authority of the Court that must approve all distributions and the discharge of the personal representative from duties or other order terminating the probate. A supervised personal representative is responsible to the Court, as well as to the interested parties, and is subject to directions concerning the estate made by the Court or on the motion of an interested party. During a supervised probate, the personal representative must file an annual accounting and an final accounting concerning the estate. A.R.S. § 14-3505.
Who May Initiate a Supervised Arizona Probate?
Any interested person or a personal representative in an informal probate may file a petition for a supervised probate at any time, even if an informal probate in pending. A.R.S. § 14-3502.
How Long Does it Take to Complete an Arizona Probate?
In the best of circumstances, an Arizona probate will take five or six months after the opening of the probate. Most informal probates last six to eight months depending on how quickly the personal administrator completes all required duties. The primary reason a probate cannot be completed in less than five months is because the personal representative must give a notice to creditors and then wait four months before the probate can be closed. All Arizona probates have the four month creditors claim period. Complex probates and formal probates can take much longer. If a trial is necessary, a formal probate could last one to two years or longer.
Who Can be Appointed Personal Representative of an Arizona Probate?
Arizona probate law provides that the following persons who are not disqualified may be appointed as personal representative of a testate or an intestate estate (regardless of whether the probate is formal or informal) in the following order of priority:
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the person with priority as determined by a probated Will, including a person nominated by a power conferred in a Will.
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the surviving spouse of the decedent who is a devisee of the decedent.
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other devisees of the decedent.
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the surviving spouse of the decedent.
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other heirs of the decedent.
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if the decedent was a veteran, the department of veterans' services.
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any creditor of the decedent after 45 days after the death of the decedent.
- the public fiduciary.
A.R.S. § 14-3203.A. A person is not qualified to serve as a personal representative if the person is:
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under the age of eighteen.
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a person whom the court finds unsuitable in formal proceedings.
- a foreign corporation.
A formal probate is required to appoint a personal representative in any of the following situations:
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if there is a person with a higher order of priority who has not renounced or waived the person's right by appropriate writing filed with the court.
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if a priority is shared by two or more persons, as devisees or as heirs and one or more of them has not renounced or concurred in nominating the person whose appointment is applied for.
- if appointment is sought for a person who does not have any priority the court shall determine that those having priority do not object to the appointment, and that administration is necessary.
Must the Personal Representative Post a Bond?
A bond is required of a personal representative unless either:
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the Will expressly waives the bond.
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all of the heirs if no Will has been probated, or all of the devisees under a Will which does not provide for waiver of the bond, file with the Court a written waiver of the bond requirement.
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the personal representative is a national banking association, a holder of a banking permit under Arizona law, a savings and loan association authorized to conduct trust business in Arizona, a title insurance company qualified to do business in Arizona, a trust company holding a certificate to engage in trust business from the Arizona superintendent of banks or the public fiduciary.
- the petition for formal or informal appointment alleges that the probable value of the entire estate will permit summary procedures under A.R.S. § 14-3973 and the surviving spouse, or the nominee of the surviving spouse, is applying for appointment as personal representative.
In any case where a bond is not required, the Court may, upon petition of any interested person and upon reasonable proof that the interest of the petitioning person is in danger of being lost because of the administration of the estate, require a bond in such amount as the Court directs to protect the interest of the petitioner or of the petitioner and others. An heir or devisee who initially waived bond may later file a petition asking the Court to require a bond.
If a bond is not initially required because the petition for appointment alleges that the probable value of the entire estate will permit summary procedures under A.R.S. § 14-3973, and it later appears from the inventory and appraisal that the value of the estate will not permit use of such procedures, then the personal representative must promptly file a bond unless one is not required for some other reason set forth in A.R.S. § 14-3603.A.
If a Bond is Required, How Much is the Bond?
If a bond is required and the Will does not specify the amount, the general rule is that the bond must be for an amount equal to the sum of: (i) the value of the decedent's personal estate plus (ii) the value of the decedent's real estate less encumbrances thereon, plus (iii) all income expected from the personal and real estate during the next year. The amount of the bond may be reduced by the amount of any real estate, less encumbrances thereon, if the letters issued to the personal representative contain the restriction that sales of real property by the personal representative are subject to court approval. On petition of the personal representative or another interested person, the Court may waive the bond requirement, increase or reduce the amount of the bond, release sureties, or permit the substitution of another bond with the same or different sureties. A.R.S. § 14-3604.
What are the Duties of the Personal Representative?
A personal representative is a fiduciary who shall observe the standards of care applicable to trustees under A.R.S. § 14-7302 and the duties of accounting applicable to trustees as provided in A.R.S. § 14-7303. A personal representative has the duty to settle and distribute the estate of the decedent in accordance with the terms of any probated and effective Will and Arizona law as expeditiously and efficiently as is consistent with the best interests of the estate.
The personal representative shall use the authority conferred by Arizona law, the terms of the Will, if any, and any order in proceedings to which the personal representative is a party for the best interests of successors to the decedent's estate. A.R.S. § 14-3703.
The personal representative shall proceed expeditiously with the settlement and distribution of a decedent's estate and, except as otherwise specified or ordered in regard to a supervised personal representative, do so without adjudication, order or direction of the Court, but he may invoke the jurisdiction of the Court to resolve questions concerning the estate or its administration. A.R.S. § 14-3704.
The personal representative's duties include, but are not limited to the following:
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At the time of appointment as personal representative, preparing a Notice to Creditors, publishing it in a newspaper and delivering or mailing the Notice to known creditors of the decedent and other persons entitled to notice. A.R.S. § 14-3801.
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Not later than 30 days after being appointed, a personal representative must notify the heirs and devisees about the appointment of the personal representative as the personal representative of the estate of the decedent. A.R.S. § 14-3705.
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Within 90 days after appointment, a personal representative, who is not a special administrator or a successor to another representative who has previously discharged this duty, shall prepare an inventory of property owned by the decedent at the time of death, listing it with reasonable detail, and indicating as to each listed item, its fair market value as of the date of the decedent's death, its nature as community or separate property and the type and amount of any encumbrance that may exist with reference to any item. The personal representative may file the original of the inventory with the court and send a copy of the inventory only to interested persons who request it; or, if he elects not to file the inventory with the court, he must deliver or mail a copy of the inventory to each of the heirs in an intestate estate, or to each of the devisees if a Will has been probated, and to any other interested persons who request it. A.R.S. § 14-3706
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If the personal representative becomes aware of any property not included in the original inventory or if the personal representative learns that the value or description indicated in the original inventory for any item is erroneous or misleading, the personal representative must make a supplementary inventory or appraisement showing the market value as of the date of the decedent's death of the new item or the revised market value or descriptions, and the appraisers or other data relied upon, if any, and file it with the Court if the original inventory was filed, or furnish copies thereof or information thereof to persons interested in the new information. A.R.S. § 14-3708.
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Except as otherwise provided by a decedent's Will, every personal representative has a right to, and shall take possession or control of, the decedent's property, except that any real property or tangible personal property may be left with or surrendered to the person presumptively entitled to it unless or until, in the judgment of the personal representative, possession of the property by the personal representative will be necessary for purposes of administration. A.R.S. § 14-3709.A
- The personal representative shall pay taxes on, and take all steps reasonably necessary for the management, protection and preservation of the estate in the personal representative's possession. A.R.S. § 14-3709.A
If the exercise of power concerning the estate is improper, the personal representative is liable to interested persons for damage or loss resulting from breach of his fiduciary duty to the same extent as a trustee of an express trust.
What if the Personal Representative has a Conflict of Interest?
Any sale or encumbrance to the personal representative, the personal representative's spouse, agent or attorney, or any corporation or trust in which the personal representative has a substantial beneficial interest, or any transaction that is affected by a substantial conflict of interest on the part of the personal representative, is voidable by any person interested in the estate except one who has consented after fair disclosure, unless either:
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The Will or a contract entered into by the decedent expressly authorized the transaction.
- The transaction is approved by the Court after notice to interested persons.
Is the Personal Representative Entitled to Be Paid?
A personal representative is entitled to reasonable compensation for his services. If a Will provides for compensation of the personal representative and there is no contract with the decedent regarding compensation, the personal representative may renounce the provision before qualifying and be entitled to reasonable compensation. A.R.S. § 14-3719.
What Occurs During an Arizona Probate?
To open an Arizona probate, a person or entity must file an Application for Appointment as personal representative with the Arizona Superior Court requesting that the Court: (i) accept the decedent's original Will for probate (if there is a Will), and (ii) appoint a personal representative to administer the decedent's estate.
To open a probate, the prospective personal representative must also: (i) file with the Arizona Probate Court a written Acceptance of Personal Representative, an approved Order to Personal Representative and a Statement of Informal Probate, and (ii) post a bond if necessary.
The Court will generally appoint the person or entity named as personal representative in the Will as the decedent's personal representative unless the person is not qualified, declines, is unable or is challenged by an interested party. The Court will usually appoint a personal representative without a formal hearing.
If the decedent died intestate, i.e., without a Will, a person or entity files a petition with the Arizona Superior Court alleging that the decedent is intestate and asking that the Court appoint a personal representative to administer the estate.
If the Arizona Probate Court is satisfied that all requirements have been met and all information has been supplied, it will open the probate and issue a document known as "Letters Testamentary" by which the Court appoints the personal representative of the estate. The personal representative may give copies of the Letters Testamentary to people and entities to show that a probate was opened and that the personal representative has the authority to act on behalf of the estate.
The Probate Code provides a list of persons who have priority to petition to become executor. In a formal probate, notices of any hearing date must be sent to the heirs and/or relatives to let them know when the hearing will be held. If there are objections to the petition, or if the validity of the Will is contested, a hearing will be used to resolve any problems that have arisen. In some cases this may mean that the validity of the Will is not upheld, or that some other person than the original petitioner is chosen to administer the estate. In most cases, however, there is no objection and the petition is granted. The executor then makes an inventory of the estate's assets, locates creditors, pays bills, files tax returns, and manages the estate assets. When all of the duties of the executor are completed, but not earlier than four months after the probate is opened, another petition is filed with the Court asking that the estate be distributed to the devisees or heirs. If this petition is granted, the probate is completed by distributing the assets to the devisees or heirs and filing final tax returns.
Can You Explain the Informal Probate Process in English?
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Petition the Court for Appointment of Personal Representative and probate the Will, if there is a Will.
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Send notice of appointment of personal representatives to devisees or heirs and other interested persons.
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Send Notice to Creditors and publish it in a newspaper
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Collect probate assets and pay debts owed by the estate.
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Prepare an inventory of probate assets including the value of the assets and file it with the court and send copies to interested parties or in lieu of filing it with the court, send it to all devisees or heirs and interested parties.
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Prepare and file any necessary federal, state and local tax returns and pay any taxes owed by the decedent and the estate.
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Distribute probate assets as provided in the Will (for testate estates) or as provided in the Arizona laws of intestate succession (for decedent's who do not have a valid Will).
- Close the probate.
What is the Notice to Creditors?
After of appointment, the personal representative must prepare a Notice to Creditors and cause it to be published once a week for three successive weeks in a newspaper of general circulation in the county in which the probate Court is located. The Notice to Creditors announces the appointment and address of the personal representative and notifies creditors of the estate to present their claims against the estate within four months after the date of the first publication of the notice or be forever barred. A.R.S. § 14-3801.
A personal representative must give written notice by mail or other delivery to all known creditors, notifying the creditors of the personal representative's appointment. The notice must also notify all known creditors of the decedent to present the creditor's claim within four months after the published notice, if notice is published in a newspaper or within sixty days after the mailing or other delivery of the notice, whichever is later, or be forever barred.
How Can I Get Notices Involving an Arizona Probate?
Any person desiring notice of any order or filing pertaining to a decedent's estate in which the person has a financial or property interest may file a demand for notice with the appropriate Superior Court at any time after the death of the decedent stating the name of the decedent, the nature of the person's interest in the estate and the person's address or that of the person's attorney. The person filing the demand for notice must mail a copy of the demand for notice to the personal representative of the estate if one has been appointed. An interested person may file a demand for notice even if an Arizona probate is not yet pending.
After filing of a demand for notice, no order or filing to which the demand relates shall be made or accepted without prior notice to the person or his attorney. A petitioner receiving a Court order or the person making the filing who fails to give proper notice to a person who has filed a demand for notice may be liable for any damage caused by the absence of notice. The requirement of notice arising from a demand ceases on the termination of the person's interest in the estate. A.R.S. § 14-3204.
When is an Arizona Probate Necessary?
Probate is not always required or necessary in Arizona after a person dies. When a resident of Arizona dies, there are two primary reasons to probate the decedent's estate with an Arizona probate court:
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the decedent has assets that cannot be transferred to the decedent's heir(s) without a probate, and/or
- the estate of the decedent desires to eliminate or reduce the claims that creditors may make against the estate. Under Arizona law the general rule is that creditors who do not file a formal claim with the estate within four months after the publication of a notice to creditors are barred forever of bringing their claims. A.R.S. § 14-3803.
What are Probate Assets?
Probate proceedings involve only assets commonly referred to as "probate assets." Arizona probate courts do not have jurisdiction over and cannot administer assets that are not probate assets. Probate assets include all real property and personal property, including intangible personal property:
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in which the decedent had an interest at the time of death, and
- that are not transferred by operation of law or by contract to a person or entity.
The decedent must have had an interest in the property at the time of death or the property is not a probate asset.
Example 1 - Transfer of Title Before Death: If the decedent gives his 2003 Hummer SUV to his mother the day before his death, the Hummer belongs to his mother on the date of death and is not a probate asset that passes through probate. However, if the decedent failed to sign the title to the Hummer to his mother and did not properly complete the legal formalities of transferring title to the Hummer, the decedent would have retained legal title to the Hummer at the time of death. The Hummer would then be a probate asset and a probate may be needed to transfer the title.
Example 2 - Incomplete Transfer of Title: The day before he dies, the decedent signs a contract with a buyer to sell the Hummer, but dies before the sale is completed and before transferring the title to the vehicle to the buyer. The buyer has a claim against the estate for the purchase of the Hummer. An Arizona probate court proceeding may be needed to transfer the title and complete the sale. If a probate is opened with an Arizona probate court and the creditor notice procedures are followed, the buyer's right to purchase the Hummer will be extinguished unless the buyer files a claim against the estate within the period allowed for filing claims.
How Does Property Transfer After Death?
When an Arizona resident dies, all property in which the decedent had an interest on the date of death is disposed of by one of the following three methods:
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By operation of law;
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By the terms and conditions of a legally binding contract; or
- By Arizona probate law.
If title to a decedent's property did not transfer after death automatically by operation of law or by a contract, the property is a probate asset. Property that passes by operation of law or by contract is a "nonprobate asset" and achieves the frequently desired status of "avoiding probate." Nonprobate assets are usually not affected by a Will or an Arizona probate.
What Types of Property Transfers by Operation of Law?
Arizona law provides that certain interests in property transfer automatically by law. The most common types of property that pass from a decedent to other people or entities by operation of Arizona law are:
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Property held by the owners as joint tenancy property;
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Property held by the owners as community property with right of survivorship; and
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Arizona real property subject to a valid beneficiary deed.
When a decedent owns an interest in property as a joint tenant or as community property with right of survivorship, the decedent's interest in the property passes automatically on the instant of death to the other joint tenant(s) or spouse, respectively, without the need for a probate. See A.R.S. § 33-431.B & C.
Example 3 - Joint Tenancy & Community Property with Right of Survivorship: Dick and Jane are married and hold title to their home as joint tenants with right of survivorship. When Dick dies, his entire interest in the home will pass automatically by operation of law to Jane, regardless of what his Will may say about the home. Dick's interest in the home is not a probate asset and not administered by his personal representative. If Dick and Jane hold title to their home as community property with right of survivorship, the result is the same.
Example 4 - Community Property WITHOUT Right of Survivorship: Dick and Jane are married and hold title to their home as community property, but not as community property with right of survivorship. Arizona recognizes two types of community property interests: (i) with right of survivorship, and (ii) without right of survivorship. When Dick dies, his interest in the home does not pass automatically by operation of law to Jane, regardless of what his Will may say about the home. When a married person dies holding title to real estate with a spouse as a community property (without right of survivorship), the deceased's interest in the property becomes a probate asset that may have to go through probate.
TIP: To determine if property is owned as community property (with or without right of survivorship), examine the deed that transferred title to the married couple - if the deed does not expressly state that title is transferred to the couple as community property with right of survivorship, title was not transferred to the couple as community property with right of survivorship. Title will be held as mere community property unless the couple changed the form of ownership to community property with right of survivorship or some other type of ownership after acquiring title. Note: To change title to real estate, the owner(s) must sign and record another deed.
Example 5 - Tenancy in Common: Dick and Jane are brother and sister and hold title to a rental home as tenants in common. When Dick dies, his interest in the home does not pass automatically by operation of law to Jane. When a person dies holding title to real estate as a tenant in common, the deceased's interest in the property becomes a probate asset that may have to go through probate.
Example 6 - Property Subject to an Arizona Beneficiary Deed: Jane is the sole owner of her home. She signs and records an Arizona Beneficiary Deed that provides that on her death, her home goes to her brother if he is alive or to his brother's children equally if her brother is not then living. On the date of Jane's death, her brother is alive. Jane's brother inherits the home without the need for a probate because Jane's interest in the home passed automatically by operation of law to her brother on her death. The Arizona Beneficiary Deed is an excellent and inexpensive device to transfer Arizona real estate without a probate. For more information on Arizona Beneficiary Deeds, see my article called "Arizona Beneficiary Deeds."
What Types of Property Transfers by Contract?
The most common types of property that pass from a decedent to other people or entities by contract are:
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Life insurance proceeds, annuities, and retirement plan benefits, which pass according to the beneficiary designation given to the insurance company or retirement plan administrator. If no beneficiary is designated or if a designated beneficiary dies before the insured and a contingent beneficiary was not designated with the life insurance company, the life insurance becomes a probate asset.
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Trust assets, which are titled in the name of the trustee and that pass according to the instructions to the trustee stated in the trust agreement. Creating a trust to hold assets is one of the most common ways to avoid probate. Assets owned by a trustee for the benefit of named beneficiaries are not probate assets and avoid probate.
Example 7 - The Living Trust - Valid Transfer: Jane is unmarried with no children. She creates a trust during her life (a "living trust" or an "inter vivos trust") to hold title to her home in Phoenix, Arizona. The trust agreement (the contract) provides that the home is to be given to her fiancée on her death. The decedent signed and recorded a deed conveying the Phoenix property to the trustee of her trust. Because the Phoenix property was owned by the trust on the date of the decedent's death, the trustee is obligated under the trust agreement to convey title to the Phoenix property to the fiancée and the Phoenix home avoids Arizona probate.
Example 8 - The Living Trust - No Transfer or Defective Transfer: The facts are the same as in Example 7, but the decedent never signed and recorded a deed conveying the Phoenix property to the trustee of her trust. Because the Phoenix property was owned by the decedent on the date of the decedent's death and not by the trustee, the home is not in the trust and does not pass according to the trust agreement. The home becomes a probate asset because the decedent owned it on the date of her death. The home will go as provided in the decedent's Will. If the decedent died without a Will, the home will go by the Arizona law of intestate succession and the fiancée will not get any interest in the home.
Caution: It is very common for people to create trusts for the purpose of avoiding probate, but fail to transfer title to property to the trustee of the trust. A trust may dispose of a decedent's assets only if the trust owns the assets. If you create a trust, make sure that you actually transfer title to property intended to be held in trust to the trustee of the trust. Some types of Arizona property such as real estate and vehicles must be transferred according to the strict formalities of Arizona law. To avoid the disaster that may occur when property intended to pass by the terms of the trust instead becomes a probate asset and passes by Will (if there is one) or alternatively, by the Arizona law of intestate succession, you must take all steps necessary before you die to legally transfer title to property to the trustee.
When Is Probate Required to Transfer Title to Real Estate?
An Arizona probate may be required to legally transfer title to an asset from the decedent to the people or entities legally entitled to inherit the asset. One of the most common reasons a probate is necessary is to transfer the title of Arizona real estate. If a person dies owning real property that does not pass automatically by operation of law, a probate may be required to appoint a personal representative with the power to sign a deed that conveys the property from the estate to the decedent's heir or heirs.
Arizona real estate transfers automatically by law after the death of an owner if the title was held as joint tenancy or as community property with right of survivorship or if the owner recorded a valid beneficiary deed. See Example 6 above. Without a probate and a properly prepared and recorded deed signed by the personal representative, the title to the real estate is clouded and probably not marketable because no title insurance company would insure the title.
Is there a Small Estate Exception to Avoid Arizona Probate?
Yes. In certain circumstances, an Arizona probate may not be required to obtain property or change title to the decedent's property. These circumstances are (i) the decedent's employer owes wages, salary or other compensation to the decedent of less than $5,000 and the decedent's spouse seeks the money, (ii) the value of the personal property of the estate less liens and encumbrances is less than $50,000, and (iii) the value of the real property of the estate located in Arizona less liens and encumbrances thereon is less than $75,000. A.R.S. § 14-3971. This small estate probate exemption cannot be used until thirty days after the decedent's death, except in the case of the spouse of a decent who seeks the deceased's compensation.
Can a Spouse Obtain Money Owed by the Decedent's Employer without an Arizona Probate?
At any time after the death of a decedent, any employer owing wages, salary or other compensation for personal services of the decedent shall pay to the surviving spouse of the decedent the amount owing not to exceed $5,000, on being presented an affidavit made by or on behalf of the spouse stating that the affiant is the surviving spouse of the decedent, or is authorized to act on behalf of the spouse, and that no application or petition for the appointment of a personal representative is pending or has been granted in this state or, if granted, the personal representative has been discharged or more than one year has elapsed since a closing statement has been filed. A.R.S. § 14-3971.A.
What is the Maximum Amount of Personal Property that Can be Administered without an Arizona Probate?
Section 14-3971.B of the Arizona Revised Statutes provides that in certain situations, an Arizona probate can be avoided if the value of ALL PERSONAL PROPERTY in the decedent's estate, wherever located, less liens and encumbrances, does not exceed $50,000 as of the date of death. This procedure involves preparing an Affidavit more than thirty days after the decedent's death that contains certain language and delivering the Affidavit to a person indebted to the decedent or having possession of tangible personal property or an instrument evidencing a debt, obligation, stock or chose in action belonging to the decedent.
All of the following conditions must be true to use this Affidavit procedure:
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thirty days have elapsed since the death of the decedent.
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either: (i) an application or petition for the appointment of a personal representative is not pending and a personal representative has not been appointed in any jurisdiction and the value of all personal property in the decedent's estate, wherever located, less liens and encumbrances, does not exceed $50,000 as of the date of death, or (ii) the personal representative has been discharged or more than one year has elapsed since a closing statement has been filed and the value of all personal property in the decedent's estate, wherever located, less liens and encumbrances, does not exceed $50,000 as of the date of the Affidavit.
- the claiming successor is entitled to payment or delivery of the property.
A transfer agent of any security shall change the registered ownership on the books of a corporation from the decedent to the successor or successors on presentation of an Affidavit pursuant to this less than $50,000 of personal property exemption.
The motor vehicle division shall transfer title of a motor vehicle from the decedent to the successor or successors on presentation of an Affidavit pursuant to this less than $50,000 of personal property exemption and on payment of the necessary fees.
KEYTLaw will prepare an Affidavit for Collection of Personal Property for $295. Contact Richard Keyt at 602-906-4953 or at rickkeyt@keytlaw.com today to get started.
What is the Maximum Amount of Arizona Real Property that Can be Administered without an Arizona Probate?
Section 14-3971.C of the Arizona Revised Statutes provides that in certain situations, an Arizona probate can be avoided if the value of REAL PROPERTY in the decedent's estate, less liens and encumbrances, does not exceed $75,000 as of the date of death. This procedure involves preparing an Affidavit more than six months after the decedent's death that contains certain language and filing it in the Court in the county in which the decedent was domiciled at the time of death, or if the decedent was not domiciled in Arizona then in any county in which real property of the decedent is located.
The Affidavit must describe the real property and the interest of the decedent in that property and state that all of the following are true and material and acknowledge that any false statement in the Affidavit may subject the person or persons to penalties relating to perjury and subornation of perjury
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six months have elapsed since the death of the decedent as shown in a certified copy of the decedent's death certificate attached to the Affidavit.
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either: (i) an application or petition for the appointment of a personal representative is not pending and a personal representative has not been appointed in any jurisdiction and the value of all real property in the decedent's estate located in Arizona, less liens and encumbrances against the real property, does not exceed $75,000 at the date of death. The value of the decedent's interest in that real property shall be determined from the full cash value of the property as shown on the assessment rolls for the year in which the decedent died, except that in the case of a debt secured by a lien on real property the value shall be determined by the unpaid principal balance due on the debt as of the date of death; or (ii) the personal representative has been discharged or more than one year has elapsed since a closing statement has been filed and the value of all real property in the decedent's estate, wherever located, less liens and encumbrances, does not exceed $75,000 as of the date of the affidavit. The value of the decedent's interest in that real property is determined from the full cash value of the property as shown on the assessment rolls for the year in which the affidavit is given, except that if a debt is secured by a lien on real property, the value is determined by the unpaid principal balance due on the debt as of the date of the Affidavit.
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funeral expenses, expenses of last illness, and all unsecured debts of the decedent have been paid.
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the person or persons signing the Affidavit are entitled to the real property by reason of the allowance in lieu of homestead, exempt property or family allowance, by intestate succession as the sole heir or heirs, or by devise under a valid last Will of the decedent, the original of which is attached to the Affidavit or has been probated.
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no other person has a right to the interest of the decedent in the described property.
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no federal or Arizona estate tax is due on the decedent's estate.
On receipt of the Affidavit and after determining that the Affidavit is complete, the Superior Court registrar shall cause to be issued a certified copy of the Affidavit without attachments, and the copy shall be recorded in the office of the recorder in the county where the real property is located. The legal significance of a valid recorded certified copy of the Affidavit is that it changes the title to the real property as provided therein on the official records of the county recorder of the county where it is recorded.
KEYTLaw will prepare an Affidavit for Succession to Real Property, file it with the appropriate Superior Court and record the certified copy of the Affidavit for $500 plus costs & fees ($206 Maricopa County Superior Court filing fee and $20 recording fee and postage). Contact Richard Keyt today at 602-906-4953 or email at rickkeyt@keytlaw.com and get started.
What is the Cost of an Arizona Probate?
The cost of an Arizona probate is the sum of: (i) legal fees (if you use a lawyer), (ii) costs such as the $206 Maricopa County Superior Court filing fee and the cost to publish the Notice to Creditors in a newspaper ($30 - $60), (iii) the cost to obtain a bond if a bond is required, and (iv) the compensation payable to the personal representative unless it is waived by the personal representative. If a bond is not required and a the personal representative acts without compensation without hiring a lawyer, the total cost could be as low as $250 - $500.
If a lawyer is involved, legal fees can vary greatly depending on the lawyer. Some lawyers may do probates for a fixed fee, but most charge on an hourly basis because it is not possible to predict how much time will be required to complete the probate. Because Arizona is not a state like California that authorizes lawyers to charge legal fees as a percentage of the value of the estate, a simple uncontested informal Arizona probate can cost $2,000 to $2,500 or more regardless of the value of the estate. Legal fees in a formal or supervised probate or if there is litigation over the estate can be substantially more.
KEYTLaw's Arizona Probate Service or Why Should I Hire Arizona Probate Lawyer Richard Keyt for an Arizona Probate?
An Arizona probate is a court proceeding that involves complex legal issues and accountability to the Court and to the devisees, heirs, creditors and other interested parties. A personal representative owes fiduciary duties to devisees, heirs, creditors and the court. A personal representative who makes a mistake can be personally liable to the devisees, heirs, creditors, interested parties and the Court. It is a high risk job that should not be undertaken lightly and without assuming the risk that the personal representative could be answering to the Court for a mistake that causes harm. For example, if the estate has assets to pay taxes and does not, the personal representative is personally liable to pay the taxes.
You should hire Arizona probate attorney Richard Keyt to represent your Arizona estate because I have been practicing law in Arizona since 1980 and Janet Spangler, my probate legal assistant, has been providing probate legal services in Arizona for over twenty years. Legal fees can be minimized because Janet does most of legal work at the relatively low hourly rate of $150. See Janet's resume.
We prepare all necessary probate documents, answer questions asked by the personal representative and advise the personal representative with respect to issues that arise during the probate. Our services include preparing a Release and Waiver document to for the signature of devisees and heirs by which they release the personal representative from liability as a condition to receiving their property. The best way for a personal representative to reduce the risk of being sued is to hire an experienced probate attorney. It has been our experience that probates all too frequently cause hard feelings and problems among family members. Probates are all about distributing money and property. The "do-it-yourself" personal representative is risking substantial personal liability and a lot of stress.
For more information about probate law Arizona or to start your probate, call Rick Keyt now at 602-906-4953 or send me an email at rickkeyt@keytlaw.com.
Exempt Estate Form Preparation Service
For personal property estates under $50,000, KEYTLaw will prepare an Affidavit for Collection of Personal Property for $295. For real property with equity under $75,000, we will prepare an Affidavit for Succession to Real Property, file it with the appropriate Superior Court and record the certified copy of the Affidavit for $500 plus costs & fees ($206 Maricopa County Superior Court filing fee and $20 recording fee and postage). Contact Richard Keyt today at 602-906-4953 or email at rickkeyt@keytlaw.com and get started.
About the Author
Richard Keyt, J.D., LL.M. (income taxation New York University Law School) is a business, real estate, transactions, contracts and estate planning attorney licensed to practice law in Arizona. He has formed over 1,500+ Arizona limited liability companies in the last few years because his low cost high quality LLC package is second to none and it only costs $599 for everything. Rick has practiced law in Arizona since 1980. Rick can be reached by telephone at 602-906-4953, ext. 101. Email at rickkeyt@keytlaw.com and fax at 602-297-6890. Rick's web site located at www.keytlaw.com had over 1,000,000 visitors in 2006 and 2007. Rick does not accept matters involving landlord / tenant disputes or litigation of any kind (other than tax lien foreclosures). Communicating with Richard Keyt via email or otherwise does not cause you to become a client or cause your communications to be confidential or subject to the attorney client privilege.
This article was first published on August 17, 2003.
To hire Richard Keyt for an Arizona probate, complete our online Arizona Probate Engagement Agreement.
For small estates exempt from probate (generally under $50,000 for personal property and $75,000 for real property), we offer an exempt estate form preparation service.
This page was last modified on August 15, 2007.
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