Transferring Arizona Real Estate of a Deceased Nonresident
1. What is Proof of Authority?
Proof of Authority refers to a type of probate action used to transfer Arizona real estate owned by a deceased non-resident. A person who has already been appointed by an out-of-state probate court as personal representative (aka “executor”) can petition for Proof of Authority in the Arizona county where the property is located. The Proof of Authority still requires a petition to an Arizona probate court, but the petition piggy-backs on the probate case already open in the other state.
2. How does a Proof of Authority work?
When filing the petition for Proof of Authority, the Arizona probate court will require a copy of Letters of Personal Representative from the other state, certified within the past 60 days, a copy of the bond, or if waived in a will, then a certified copy of the will. The filing fee varies by county, but is approximately $250. When approved, the probate court will return a certified copy of the Proof of Authority. The personal representative then records the certified Proof of Authority in the county where the property is located.
At this point the personal representative has options: (1) record a Deed of Distribution transferring the property to the appropriate heir, (2) sell the property and transfer the proceeds to an estate account, or (3) if the property has an existing mortgage loan on it, negotiate with the mortgage lender for a refinance or assumption of the loan, assuming the heir cannot afford to pay it off in full.
The personal representative will sign the necessary documentation as “domiciliary foreign personal representative.”
3. What if a probate was not filed in the other state?
The Proof of Authority assumes there is a court-appointed personal representative in the deceased owner’s state of residence. If this is not the case, the Proof of Authority cannot be used, and there are two remaining options:
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.
Proof of Authority refers to a type of probate action used to transfer Arizona real estate owned by a deceased non-resident. A person who has already been appointed by an out-of-state probate court as personal representative (aka “executor”) can petition for Proof of Authority in the Arizona county where the property is located. The Proof of Authority still requires a petition to an Arizona probate court, but the petition piggy-backs on the probate case already open in the other state.
2. How does a Proof of Authority work?
When filing the petition for Proof of Authority, the Arizona probate court will require a copy of Letters of Personal Representative from the other state, certified within the past 60 days, a copy of the bond, or if waived in a will, then a certified copy of the will. The filing fee varies by county, but is approximately $250. When approved, the probate court will return a certified copy of the Proof of Authority. The personal representative then records the certified Proof of Authority in the county where the property is located.
At this point the personal representative has options: (1) record a Deed of Distribution transferring the property to the appropriate heir, (2) sell the property and transfer the proceeds to an estate account, or (3) if the property has an existing mortgage loan on it, negotiate with the mortgage lender for a refinance or assumption of the loan, assuming the heir cannot afford to pay it off in full.
The personal representative will sign the necessary documentation as “domiciliary foreign personal representative.”
3. What if a probate was not filed in the other state?
The Proof of Authority assumes there is a court-appointed personal representative in the deceased owner’s state of residence. If this is not the case, the Proof of Authority cannot be used, and there are two remaining options:
- Petition for informal probate in Arizona. A qualified person may petition for informal appointment as personal representative in the Arizona county where the property is located. This gives someone full authority to deal with the property. However, it is the most expensive and burdensome option.
- File an Affidavit for Succession to Real Property in Arizona. A small estate affidavit is available for transfer of the property if the net equity is less than $100,000 and the deceased person did not have other assets that require an Arizona probate. This option is available no earlier than six months after date of death.
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.