What property must be probated and how the Tempe Arizona probate process works
Probate is the way in which property that passes through a deceased person’s estate is collected, accounted for and, distributed. With proper estate planning, many assets can be directly paid or transferred to a beneficiary without the need for probate. Arizona simplifies the probate estate for small estates. For many estates though, Arizona requires that the formal probate process be completed.
At Yaser Ali Law, our Tempe probate lawyers help those who prepare wills and estate minimize the need for probate. When someone dies, we work to make sure the right person is appointed to represent the estate, that eligible creditors are paid, that all the necessary taxes are completed, and that your loved ones (the heirs and beneficiaries) get the assets you wanted them to get as soon as possible
Types of property that do not need to be probated
The following kinds of property do not require probate:
· Joint tenancy with right of survivorship. If the property is properly titled in the names of two tenants, then when one owner dies, the other owner is entitled to full ownership of the property without a court order.
· Tenancy by the Entirety and Community Property with Right of Survivorship. This is essentially a joint tenancy between spouses.
· Retirement accounts and life insurance policies. If a beneficiary is designated, the beneficiary is entitled to the assets designated in the policy without having to go through the probate process.
· Payable On death accounts. Here, the owner of bank account or brokerage account designates a beneficiary who gets the funds in the account when the owner dies.
· Trusts. Money placed in an irrevocable trust is either paid to the beneficiary or held for the beneficiary after the person who created the trust dies. There are many different types of trusts that are used to control who gets the assets and to minimize the amount of taxes that must be paid. Living trusts and special needs trusts are two examples. Your Tempe probate lawyer can explain which trusts qualify for probate avoidance and which trusts must go through probate.
· Transfer-on-death assets. Arizona allows owners to complete a transfer-on-death form for assets such as vehicles and securities. The assets pass to the beneficiaries without the need for probate.
Other assets such as real estate that is transferred by using a transfer-on-death deed and retirement accounts, if set up correctly, should not require probate.
How small estates are handled
If the estate is small enough, the beneficiaries can claim their shares by completing an affidavit instead of going through probate. “Small estates” is a term of art. To be considered a small estate:
· The value of the personal property must be less than $75,000.
· The value of real property must be less than $100,000.
There are other small estate requirements such as that the funeral expenses and unsecured bills should be paid, the beneficiaries must wait for 30 days to six months depending on if the property is personal or real estate, and other requirements your Tempe probate attorney can explain.
Some estates qualify for “Simplified Probate”
Some estates don’t have any assets that can be distributed. The value of the assets (after secured creditors are paid) is less than the burial bills, medical expenses, administration costs, and a reasonable sum need to support the decedent’s spouse and children. In this type of case, the personal representative can file a petition with the court approving the payment of bills and support for family members.
Types of Arizona Probate
A personal representative must be appointed to collect the assets, value them, pay the bills, and distribute what remains. The representative can either be appointed in the decedent’s will (this type of representative is called an executor) or by approval of the probate court. Any will must be filed with court.
There are different types of probate depending on who objects and what the objections are:
· Informal probate. The executor or court-appointed personal representative handles the estate with little court oversight. Informal probate can’t be used if there is a challenge to authority of the executor or personal representative. This process is used where the heirs and beneficiaries get along.
· Formal probate. This process is used if the appointment of the executor or personal representative is challenged or there are arguments about how the will should be interpreted.
· Supervised probate. Here the court is an active participant in the probate. The personal representative must get court approval before paying creditors, paying taxes, collecting and distributing the assets.
The authority of the executor or personal representative.
When someone is formally approved to represent the estate, that person is given formal letters of administration. The executor or court-appointed personal representative has the authority to:
· Send out formal notices to all interested parties
· Advertise the death of the decedent in local newspapers
· Provide proof that the notices and advertisements were properly done
· Obtain the assets often be opening a separate estate account
· Prepare the inventory of assets and the appraisal of the value of the assets
· Distribute the assets to the rightful heirs and beneficiaries
· Prepare and file an accounting with the probate court and a “closing statement” verifying that all the necessary tasks have been performed
Speak with an experienced Arizona probate lawyer today
At Yaser Ali Law, our Tempe probate lawyers understand how upsetting it is when a loved one dies. We work with Arizona residents to prepare their wills and other estate planning documents. When death happens, we work with named executors, relatives, and heirs to approve the appointment of personal representatives and to guide the representative through the probate process. Our goal is to help the representative comply with the probate requirements competently and expeditiously.
For help with your probate needs and questions, please call us at (480)-442-4175 or complete our contact form to schedule an appointment.