WHAT IS PROBATE?
Probate is a court process of settling and distributing a decedent’s estate. Probate is typically necessary in matters where there is real property to be transferred that has not passed by operation of law. Probate is generally required by law whether there is a Will or not, unless certain exceptions apply. One exception is that there are estate planning instruments and documents in place that specifically avoid probate. Another exception to the probate requirement is in instances where the value of the property in the estate is valued less than a certain amount as specified by Arizona statute.
When there is a Will, probate serves to prove that Will. In such situations where there is no will, the probate court will look to statutory law to determine how and to whom the assets in the estate will be distributed. Note that probate is also needed if there is an invalid Will or in the case that there is a dispute regarding the estate.
Probate begins with applying for appointment of Personal Representative. When there is no Will, someone with priority to serve as Personal Representative steps forward and requests to be appointed by the Court. If there was a Will, then the person who was named Personal Representative in the Will initiates the process by submitting the Will to be probated by the Court. Informal probate involves filing numerous detailed documents, keeping all interested parties on notice, inventorying property, appraising property, providing notice to creditors, paying debts and then disbursing the money, property and other assets among the heirs.
Probate involves filing the decedent’s will, inventorying property, appraising property, paying debts and then disbursing the money, property and other assets among the heirs. Many people try to plan ahead to avoid probate because it is costly, lengthy and it is also a public process. In other words, many people would prefer to create instruments that will avoid probate in order to save money, time and maintain privacy. For some people probate can be beneficial in the sense that it provides a cutoff for creditor’s claims against the estate.
Small Estate Probate Exception
In Arizona, there are statutory exceptions to probate when the decedent’s personal property is valued at less than $75,000 or his or her real property is valued at less than $100,000. In these instances, a simplified court process involving filing an affidavit of succession of property can be used to transfer the property. A surviving spouse may also use this method of obtaining property to collect wages in an amount up to $5,000 owed to the decedent. For personal property, at least 30 days must have passed since the death of the decedent. And for real property, at least 6 months must have gone by since the death of the decedent.
Where to start after someone passes away?
Initial considerations when someone passes away include determining the following:
- Was there a valid Will?
- Who will serve as personal representative?
- Who the potential heirs are
- What the assets are
- Who the creditors are
When a loved one passes away, start by locating and reviewing the decedent’s important documents to determine whether he or she left a valid Will. If there is a Will, it should name a person to serve as Personal Representative. If there is no Personal Representative named in a Will, then someone with priority may step forward and petition the Court to be named Personal Representative.
According to Arizona law, priority of who may serve as personal representative is as follows: person with priority as determined by a probated will including a person nominated by a power conferred in a will, surviving spouse of the decedent who is a devisee (a person designated in a will to receive a testamentary disposition of real or personal property) of the decedent, other devisees of the decedent, surviving spouse of the decedent, other heirs (persons, including the surviving spouse and the state, who are entitled under statutes of intestate succession to property of the decedent) of the decedent, department of veterans’ services (if decedent was a veteran or the spouse or child of a veteran), any creditor (forty-five days after the death of the decedent) or a public fiduciary.
For help settling an estate and distributing property after someone has passed away, contact Asset Law Firm, PLLC.