FAQ- Probate and Decedent’s Estates
Outlined below are answers to some frequently asked questions regarding probate and decedent’s estates. If you have additional questions, please call to speak with one of our attorneys. We will provide you with a free telephonic consultation to assist you with your matter. Please note that the free consultation does not apply to providing assistance with self service documents.
Q: What is probate?
A: A probate is a Court procedure by which the assets of a person who has died, called the “decedent”, are transferred to their rightful heirs.
Q: What happens in a probate?
A: During the probate process, the following events take place:
- Funeral expenses and expenses of last illness are paid (or reimbursed to whoever paid for them)
- The decedent’s federal and state taxes are calculated and paid
- Creditors of the decedent submit claims and such claims are paid as long as sufficient funds are in the estate
- If appropriate, estate property is sold (i.e. sale of real estate, estate sale of property)
- Remaining funds get distributed to rightful heirs
Q: Who receives the decedent’s assets and/or property?
A: If the decedent had a Last Will and Testament, the individual(s) entitled to the estate would be those named in the will. In the event that the decedent died intestate (without a will), Arizona law determines who are the rightful heirs to the estate.
Q: Do all assets have to go through probate?
A: No. In many cases assets do not need to go through probate, they simply pass to another individual upon death. The assets that automatically transfer include the following:
- Assets with a beneficiary designation, pay on death “POD” designation or transfer on death “TOD” designation. These assets are given directly to the beneficiary listed on the account.
- Real estate that is designated as joint tenants with right of survivorship “JTWROS” or community property with right of survivorship “CPWROS”. The property will automatically transfer to the remaining joint tenant upon filing a certified death certificate with the County Recorder.
- Real estate in which the decedent has prepared and filed a beneficiary deed.
- Property owned by the decedent that is contained within a living trust and is titled to such living trust.
Q: I have been told I need Letters Testamentary or Letters of Personal Representative. What are these?
A: In the State of Arizona, a Personal Representative is the individual who has been appointed by the Court to administer the decedent’s estate. Several states use the term Executor or Executrix. Although the titles are different, they mean the same thing. “Letters of Personal Representative” is a document from the Court that shows who has the authority to deal with the decedent’s assets. Most financial institutions will require Letters and the certified death certificate before they will allow access to the decedent’s accounts. You cannot obtain Letters without going through the probate process.
Q: How much does probate cost?
A: It varies. A small estate procedure (described below) is likely to be a few hundred dollars where a standard probate will be several thousand dollars. The exact cost will depend on the complexity of the estate. Factors that can affect the cost are the nature and size of assets, number of heirs and estate tax issues. Some attorneys charge a percentage of the size of the estate. However, most attorneys in Arizona charge hourly, which can save the estate large sums of money.
Q: I don’t have money to pay an attorney. What do I do?
A: Our office will open a probate procedure with no money down as long as the estate has assets. We work with our clients to assist them through difficult times and to make this procedure as easy as possible.
Q: What is a small estate procedure?
A: A small estate procedure is one where an Affidavit can be used to collect an asset without opening a full probate procedure. If the total amount of probate assets is under $50,000, an Affidavit for Collection of Personal Property can be used to collect the asset. This is a one page document and does not need to be filed with the Court.
If a decedent’s real estate is under $75,000, an Affidavit for Transfer can be filed with the Court without the requirements of a probate procedure. This Affidavit gets filed with the Court and must be accompanied with the appropriate filing fee. The Affidavit is then recorded with the County Recorder to finish the transfer of property.
There are certain time requirements and conditions to be able to engage in a small estate procedure. If you have more questions, please feel free to contact our office.
Q: How long does probate take?
A: Most probates take between six months to a year. Some probates can take longer than a year if there are several heirs, substantial assets, assets in other states or if the estate contains real property that needs to be sold. In Arizona, a probate cannot be completed in less than 4 months. The reason for this is that Arizona law provides creditors with a four month window to make a claim against the estate for payment of the decedent’s bills.
Q: How do I pay for expenses when probate takes at least four months?
A: The estate cannot be distributed to the ultimate heirs until all creditor’s claims are received and paid. However, the Personal Representative has access to the decedent’s accounts and can immediately pay expenses from the decedent’s funds. For example, the Personal Representative can continue to pay mortgage payments and utilities for the decedent’s property. The Personal Representative can also access funds to pay funeral expenses or for administration costs.
Q: Do I have to have a lawyer to probate an estate?
A: No. There is no requirement under Arizona law that requires you to have an attorney to file a probate. In fact, the Maricopa County Court has a self service center where some of the forms can be found. This link will take you to the Court’s website: http://www.superiorcourt.maricopa.gov/SuperiorCourt/Self-ServiceCenter/. However, most people find this process confusing and do not often understand the legal requirements for probate. Further, the Personal Representative is personally liable for any improper administration of a probate estate. As such, it is advisable to obtain an attorney to ensure that the estate is properly administered.
