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Small Estate Probate Exemption – Real Property

Small Estate Probate Exemption – Real Property 2017-02-28T20:17:11+00:00

by Richard C. Keyt, Arizona probate attorney

Question:  What is the Maximum Amount of Arizona Real Property that Can be Administered without an Arizona Probate?

Answer:  $100,000 ($75,000 before 9/13/13).  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 $100,000 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:

1. 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.

2. 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 $100,000 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 $100,000 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.

3. Funeral expenses, expenses of last illness, and all unsecured debts of the decedent have been paid.

4. 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.

5. No other person has a right to the interest of the decedent in the described property.

6. 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.

How to Hire KEYTLaw to Prepare an Affidavit

KEYTLaw will prepare an Affidavit for Succession to Real Property, file it with the appropriate Arizona Superior Court and record the certified copy of the Affidavit in the appropriate county for $1,497 including costs & court filing fees.  If you have any questions about the Affidavit or the process call Arizona probate attorney Richard C. Keyt at 480-664-7472.