By Abigail Neal, Phoenix probate lawyer
What Is A Probate?*
Probate is a superior court action that is filed when someone passes away. Although the probate court has other jurisdiction (for example, to handle guardianships and conservatorships), when most people think of probate think they think of the process of transferring assets out of the name of the deceased person and into the names of the heirs. Boiled down to the basics, it is a relatively easy to understand process:
- Appoint the personal representative (called an executor in some states). This person is responsible for handling the probate, gathering and distributing the assets, dealing with the court, etc.
- The personal representative notifies heirs, devisees and creditors.
- The personal representative locates, collects and inventories all of the assets owned by the deceased person. Some of the assets may have passed automatically or could have been transferred to a trust. These assets are not part of the “probate estate” and will not be handled during the probate action (unless there is some type of unusual issue).
- The personal representative pays all of the last expenses of the deceased person, including final medical expenses (if any).
- The personal representative files the deceased person’s final tax returns and pay any taxes if owed.
- The personal representative distributes the remaining assets to the heirs. If the deceased had a Last Will and Testament, the assets will go pursuant to the Will. If not, the assets will be passed pursuant to the Arizona laws of intestate succession.
- The personal representative closes the probate.
Unless there are any issues, like if the Will is contested or there is fighting between the heirs, probate can be a relatively straight forward process. If the Will (if any) is not contested and everyone gets along, the whole process can be completed in about six months. If everyone doesn’t get along, the process can go on for years – just like any other court case.
Is Probate Necessary?
Maybe. It depends on two major issues: 1) does everyone get along and 2) how much are the deceased person’s assets worth? If everyone doesn’t get along regarding who should get what, a probate is probably required to sort everything out. Depending on the value of the deceased’s assets, probate may or may not be required. Of course, if the deceased did not have any assets no probate is required. Arizona has special laws exempting some estates from probate. These are called the “small estate” exemptions. These can be used if the value of the deceased’s personal property is $75,000 or less and/or the value of the deceased’s real property is $100,000 or less. Learn more about the personal property and real property exemptions.
In order to determine the value of the assets owned by the deceased person, someone must prepare an inventory. Things to look for include personal property (clothing, furniture, art, jewelry, etc.), vehicles/boats/planes, real estate, bank accounts, safe deposit boxes, life insurance accounts, retirement/401k and investment accounts, stocks or other company ownership certificates, certificates of deposit and cash. If the deceased was working with a financial professional they can likely help you with a number of these items.
Sometimes an asset will pass at a person’s death automatically. Examples include:
- Life insurance pursuant to the beneficiary designation on the policy
- Bank accounts with a “pay on death” designation
- Real property via a beneficiary deed
- Retirement accounts pursuant to the beneficiary designation on the account
- Property titled jointly with right of survivorship (most often seen with real estate and bank accounts – some paperwork may be required)
Assets that pass automatically are not included in the deceased person’s probate estate. Accordingly, these assets are not included in the total when determining whether a small estate exemption would apply. If the small estate exemption applies, only an Affidavit is necessary. We can prepare these for you for a low flat fee.
Are We Responsible For The Debts?
Typically, no. In most cases, heirs do not inherit the debts along with the assets of the deceased. While the debts may decrease the amount you receive, typically a creditor cannot pursue you personally for the debt of your loved one. There are some exceptions to this rule, namely if money was owed on an account shared with one of the heirs or if one of the heirs guaranteed a debt of the deceased.
How Much Does Probate Cost?
It depends on the type of probate action required. There are different types of probate proceedings:
- Appropriate when everyone gets along and agrees who should get what and if there is a Will, no one is contesting it (arguing it is invalid)
- Least amount of court supervision. More like to an administrative process
- Least expensive
- Required when everyone doesn’t get along, can’t agree on who gets what, can’t agree on who should be personal representative and/or a Will is contested
- Requires major judicial interaction. Like any other litigation proceeding. Includes motions, discovery, depositions, hearings, etc.
- Could take years
- Most expensive
- Hybrid between formal and informal. Required if there are unusual issues, like dealing with an insolvent estate
- Requires court authority to settle estate
- Time and cost are dependent on complexity of the issues
Whether or not you hire a lawyer, some costs remain the same. These costs include the court filing fees (between $200-$300 depending on the county), publication fees, certified document fees and potentially other fees like appraisals.
Call us today at (480) 699-7992 to get started. If you have questions about Arizona probate and whether or not one is necessary in your particular situation, please don’t hesitate to call. We don’t charge for answers to quick questions.
Can I Do It Myself?
You can try. But you might gain some gray hair in the process! Probate requires extensive document preparation and exchange. Even the easiest probate requires a substantial amount of paperwork – an inch thick or more if you try to use the court’s self-help documents. We’ve reviewed the self-help documents and WE – Arizona probate attorneys – found them to be confusing, overwhelming and complicated, and discovered that some of the required paperwork isn’t included in the form packet. Often people will try to do it on their own only to have to hire a probate attorney later to sort out the mess. This results in more legal fees than there would have been had the attorney handled it from the start.
We know this is an especially difficult time for you and the last thing you need is additional stress. We can help. Call Arizona probate attorney Abigail Neal at (480) 699-7992.
*Please note, this article applies to Arizona probate only*