What You Should Know About Probate in Arizona
1. What is Probate?
Probate is the court-supervised process of transferring assets from a decedent’s personal name to the heirs. If the decedent left a will, the probate registrar will examine the will to determine whether it is admissible in court. Without a valid will, the default state laws will control.
The probate process involves extensive drafting and exchange of legal documents. Even a very simple probate requires an overwhelming amount of paperwork. Although standard forms are readily available, the challenge is to learn what forms to complete, how to complete them, and when to use them. Understanding the probate process is similar to learning a new language. Perseverance to complete the project is essential.
2. When is a probate action required in Arizona?
Under Arizona law, the general rule is that if the decedent owned more than $75,000 of equity in real estate, or more than $50,000 of personal property (including physical possessions and money), then a traditional probate is required to transfer the assets to the heirs. However, there are numerous exceptions to this rule. For example, if an asset is titled “joint tenancy with right of survivorship,” the surviving owner inherits the property without probate. Other exceptions include assets titled in trust name or assets subject to a beneficiary designation.
If the decedent owned assets subject to probate, but their value is less than the minimum amount noted above, simpler affidavit procedures may be used to transfer the assets.
3. What is the process for opening a probate?
The initial application seeks to identify and appoint a personal representative. This person will be responsible for administering the probate. The probate process begins with the filing of an application with the probate court in the decedent’s last county of residence. The application is accompanied by an assortment of other forms prescribed by the court. The personal representative may be required to post a bond, unless waived in the will or by all the heirs.
When the application is submitted, the initial objective is to obtain a certified copy of the Letters of Personal Representative from the probate court. The term is a strange one considering the typical meaning of the word “letter.” This is a good example of what makes probate confusing.
You would think the document might be called “Proof of Authority” or “Confirmation of Appointment,” but the probate courts continue to use the traditional – perhaps antiquated – term.
4. What are the steps in a typical Probate?
Step 1: Initiate Probate and Appoint Personal Representative
Submit application; submit bond or waivers of bond; obtain Letters of PRStep 2: Notify Heirs, Devisees, and Creditors
Publish notice; notify known creditors; send notices to each devisee and heirStep 3: Inventory the Estate
Prepare inventory in approved format; title all estate property in name of estateStep 4: Manage Claims
Pay valid debts; send out notices of disallowance (if necessary)Step 5: Distribute the Estate
Determine who the heirs are; transfer assets to heirs using appropriate methodStep 6: Close the Estate
Prepare final accounting or waiver of accounting; file closing statement5. What is the difference between formal and informal probate?
Most probate actions in Arizona are “informal,” which means they are completed with minimal court supervision. No visits to the courthouse are necessary and there will not be a judge overseeing the personal representative’s every move. A small number of probate actions are “formal,” which involve stricter notice requirements, court hearings and increased supervision. Formal probates are reserved for cases when there is controversy surrounding the validity of the will, choice of personal representative, or identification of heirs.
6. How much does a typical probate cost?
The initial filing fee for an informal probate in Arizona is approximately $200. There may be additional costs and expenses for publications, recordings, appraisals, and tax filings. An estate attorney will usually agree to handle an uncontested, informal probate from start to finish for about $2,500 to $3,500. The majority of law firms use hourly rates to calculate the fee, but an increasing number are switching to fixed fee pricing structures. A formal probate will be much more expensive. Hourly rates are used to calculate the fee because the amount of legal work involved is hard to predict at the beginning.
About the Author
Thomas J. Bouman provides legal counsel in the areas of estate planning, estate settlement, and asset protection. He brings a highly systematic approach to the practice of law, which is critically important when wading through the complex, and often bizarre, legal requirements associated with estate and trust law. Mr. Bouman is author of the Arizona Estate Administration Answer Book and a prominent member of Wealth Counsel, LLC, the nation’s premiere organization of estate planning attorneys.
Thomas J. Bouman, Attorney
Bouman Law Firm
7650 E. Broadway Blvd. #108
Tucson, AZ 85710
(520) 546-3558
