Probate in Arizona
Probate in Arizona is the formal process that will determine how the assets of a deceased person will be handled. A Probate needs to be filled at an Arizona Probate court.
If a Will exists a Personal Representative may have been named on it by the deceased person. The Personal Representative will be responsible for the filling the probate at an Arizona Probate court. The Personal representative will in general hire a lawyer to handle the process for them.
What happens if there isn't a Will?
In the absence of a Will, or if a Personal Representative was not named on the Will, the responsibility to start the probate process in Arizona follows the person listed below, in order:
- Surviving Spouse;
- Surviving Adult Children;
- Other legal heirs;
- If no probate is filled within 45 days of the deceased passing a public fiduciary will file the probate.
A bond may or may not be required when filling a probate. One person should assume that a bond is required but there are exceptions to it. If a Will exists it may specify that a bond is not required. Another exception can be done by the heirs or devisees associated with the probate. They have the ability to waived the necessity of the bond by write. If the probate is been filled by an entity, like a fiduciary agent or a trust company, they will not be required to acquire a bond.
A person that has interest on the estate may still require a bond, even if it was waived. The person will have to petition to the court to have the bond in place, the person will have to justify why they are asking for a bond, usually arguing that there is some type of risk in relation to the administration of the estate.
What is the Personal Representative responsible for?
The Personal Representative will have a fiduciary duty to the estate. That means that they will administer the estate in a way to not benefit themselves or any of the heirs. The duties of a Personal Representative are listed below:
- Inventory Preparation listing all the assets of the deceased person;
- Provide proper notice to creditors in a organised way. Access all debts and claims made to the estate and make sure that any valid claim is paid;
- File the last federal tax return for the deceased person. If a joint filling is done this responsibility is also shared by the surviving spouse. All taxes that are due will be paid with money from the estate;
- Distribute the assets of the estate to the beneficiaries of it.
A question that we get asked from time to time is if Personal Representatives are paid for the service that they provide to the estate. They are entitled to a reasonable compensation from the estate. The money for the payment should come from the estate itself. If a Probate Lawyer is hired to deal with the matters of the estate payment to the lawyer should also be made with money from the estate.
If a Will is in place it is the responsibility of the Personal representative to distribute the assets according to the Will. In the absence of a Will probate in the state of Arizona follows the rules of intestate succession, check our blog article that explains what happens if someone dies without a Will in Arizona.
By Arizona law do every estate has to be probated?
By Arizona law an estate without assets doesn't need to be probated. There are also a few assets that do not require probate either:
- Proceeds that are originated from Life Insurance that named at least one beneficiary;
- Proceeds that originate from Annuity that also have at least one beneficiary named;
- Community Property that has rights of survivorship on the death of the first person;
- Assets that have been transferred to a Living Trust, been the Trust Revocable or Irrevocable;
- Bank accounts and investment accounts that are Payable on Death (POD) or Transferable on Death (TOD) and have at least one beneficiary named as well;
How to avoid Probate in Arizona
Thankfully we can help you navigate the process of Probate in Arizona.
There are a few ways that an estate can avoid probate. The first one is if the estate's assets are small. Personal property of up to $75,000 can be transferred to an individual or beneficiary using an affidavit. There is an obligatory waiting period of 30 days from the deceases passing that has to be waited for the transfer to happen. Real property of up to $100,000 can also be transferred using an affidavit, the obligatory waiting time in this case is of 6 months.
Another way to avoid probate is by proactively creating a Living Trust and moving all the assets to the instrument in question.
Citadel Law Firm PLLC legal team can help you on this difficult moment. We will help you and your family navigate through the probate process smoothly.
Call us today to schedule a free estate planning consultation.