When I first started at the law firm over 2 years ago, I was coming from a role in local government. I didn’t understand the ins and outs of Probate. I knew it involved the legal system once someone died, but that was the extent of my understanding. It didn’t take long for my on-the-job training, (and our expert attorney’s knowledge), to educate me.
While Probate does involve the legal system, it does not need to be an invasive or lengthy procedure. Here are the basics on Probate, and a few more specifics within the state of Arizona. Each state is governed by their own laws respecting Probate, because of that I will try to speak mostly in generalities, except when mentioning Arizona specifically.
Forbes magazine defines Probate as, “…a legal process that occurs after a death. In most cases, probate is a key part of settling the estate of a deceased person. In fact, probate may also be referred to as “estate administration.” {1}
Without proper Estate Plans and clear, legal guidelines as to what happens once you are deceased, the courts will uphold what the law decided for you, regardless of what your wishes may have been. Of course, if a valid Will is in place, (aka legal), the court oversees your plan memorialized in your Will and is there to ensure it is handled accordingly.
When someone dies without a Will, this is called intestate, and state laws determine who has priority to be appointed as “Personal Representative” or “Executor”,(depending on what state you are in), whilst in Probate. One can petition to become the personal representative or executor for the estate with the court and the appropriate documents have to be filed.
When dealing with the death of a loved one, no one wants to be overwhelmed with all the details, which include an accounting of someone’s life and all the time-consuming aspects of settling one’s estate. Planning ahead can alleviate a lot of the burden on those you’ve left behind. If you find yourself or another dealing with the estate of someone, below is an outline of some of the basics.
Arizona has three forms of Probate: small estate, informal and formal/supervised probate. Small estates qualify to be administered by affidavit, which are forms provided by the court. Assets also pass outside of probate. The following assets do not necessarily go through the Probate process.
* Living trust assets: Assets held in a living trust are not included in the probate estate.
* Property held in joint tenancy: A home, bank account, or other asset held in joint
tenancy does not go through probate. Instead, the surviving owner
becomes the sole owner.
* Community property with right of survivorship: Arizona is a community property
state. A married couple can add a right of survivorship to any community
property. All property held with a right of survivorship passes to the surviving spouse
outside of probate.
* Payable-on-death bank accounts: The funds in a payable-on-death account pass to
the POD beneficiary at the death of the account holder.
* Assets registered in transfer-on-death form: Arizona allows you to name a transfer-
on-death (TOD) beneficiary. Assets registered in TOD form pass directly
to the named beneficiary without probate.
* Real estate transferred by a transfer-on-death deed: In Arizona, an owner of real
estate can execute and record a beneficiary deed that allows property to
go directly to the beneficiary(ies) without probate, instead it passes by deed.
* Life Insurance and Annuities Contracts: When agreements, such as life insurance
policies or annuities, specify a beneficiary to receive proceeds, the
proceeds do not need to go through probate. They are passing pursuant to the
contract’s terms, which have beneficiary designation forms.
* Retirement accounts: The funds in retirement accounts do not go through probate if the account holder designated a beneficiary. Again, they are passing
pursuant to the retirement contract’s terms, which have beneficiary designation forms.
If there are additional property/assets the following Probates are followed in Arizona.{2}
Small Estate Affidavit:
Informal probate. Informal probate is the simplest form of probate, used when there is a valid will that has not been challenged. The personal representative appointed by the court administers the estate with minimal court supervision.
Formal or supervised probate. The court uses formal probate to resolve an estate’s legal issues – for example, if the validity of a will is contested, there is a dispute over who should be appointed personal representative, or there are conflicting interpretations of a will. This can be formal until the issues are resolved and then revert to informal or stay supervised throughout the administration.
Supervised probate. Some estates require supervised probate, in which the court oversees every step of the probate process. This means the personal representative seeks court approval before taking action, such as paying creditors or distributing assets. Any person who has an interest in an estate can request supervised probate.
Hopefully, we have demystified some of the details around Probate. It is certainly not a simple matter or one that can be handled without help. We hope you or your loved ones never find yourselves in this situation, but if you do, please know we can help and guide you through the process. If you have any questions, our office is open Monday-Thursday 9am-5pm and Fridays by appointment. You can also email anytime info@bizestatelaw.com or book an appointment on our website Book an appointment.
References:
{1} June 15, 2023 Forbes online What Is Probate & How Does It Work?What Is Probate & How Does It Work? – Forbes Advisor
{2} Nolo online lawyers encyclopedia 2023 Arizona Probate: An Overview | Nolo
