Answers to Common Probate Questions
Answers to Common Probate Questions
What is probate and who can request it?
Under Arizona law, probate is the process which validates a will, settles debts and liabilities, distributes assets, and carries out the actions of a decedent’s estate. There are different categories or types of probate in Arizona. The three most common types of probate are: informal, formal, and supervised. Probate generally begins when a person dies and a petition is filed with the probate court. ARS § 14-3301 designates who may initiate probate. The statute generally permits close relatives of the decedent, such as a surviving spouse, adult child, parent, or sibling. The statute also permits or provides rules to allow others to open probate including heirs, a nominated personal representative, creditors, and public fiduciaries.
How do I know if probate is necessary?
The first step is to inventory the assets owned by the decedent. Assets which are owned by a trust, rather than the decedent, or assets which have a designated beneficiary, such as retirement accounts, insurance policies, and some financial accounts are generally not subject to probate. Additionally, real property (real estate) with a beneficiary deed or that was owned as a joint tenancy with a right of survivorship is not subject to probate.
If the total value, less liens and other encumbrances, of the decedent’s real property exceeds $100,000, probate will generally be required. Similarly, if the total value, less liens and encumbrances, of the decedent’s personal property exceeds $75,000, probate will generally be required. Note that probate will be required even if the decedent left a will. If the decedent’s real property or personal property do not exceed those amounts, probate may be avoided by using an Affidavit of Personal or Real Property.
In Arizona, if a decedent’s estate is small enough, the law allows you to skip probate altogether and use a simplified process. This usually is reserved for smaller estates if the value is under $100,000 (for real estate) or under $75,000 (personal property).
Code Section | |
When is an estate eligible for small estate administration? | Personal property:
Real estate:
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What Assets Skip Probate Entirely |
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Estate Taxes | No, Arizona does not collect a separate estate tax. |
Where to Order Death Certificates | |
Probate Resources | |
Duties of a Personal Representative | He or she must:
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The above table comes from https://statelaws.findlaw.com/arizona-law/arizona-probate-laws.html
What is the probate process in Arizona?
How long does probate take?
The length of time to complete probate can vary depending on the type and complexity of the probate and estate. A simple and straightforward probate may be completed within a few months. Probate which is formal or supervised or where there are assets or property which is owned outside of Arizona, on the other hand, can cause the process to be prolonged for a few years.
What are the basic rules of intestate succession?
States vary on how the rules of intestate succession apply. These default rules only apply in situations in which the decedent has died “intestate”, meaning without a will. It is important to note that if the decedent has left a will or a trust, the provisions of those documents override or are superior to the laws of intestate succession.
In Arizona, assets that fall under the rules of intestate succession are generally divided up among living relatives of the decedent. Because Arizona is a community property state, most property acquired during marriage is considered community or marital property. Half of the marital property will remain with the surviving spouse and the decedent’s share will be distributed according to state statutes depending on the circumstances. If the decedent had no children, or if all of the children that the decedent had were with the surviving spouse, then the surviving spouse will inherit the entire intestate estate. If the decedent had other children from a prior relationship, then the surviving spouse will inherit ½ of the decedent’s separate property, keep the half of the community property which belongs to the surviving spouse, but will not inherit the remaining portion of the community property which belonged to the decedent.
The portion of the property which remains and is not inherited by the surviving spouse or if there is no surviving spouse will go to the children of the decedent by representation. If there are no children or surviving children, Arizona law will first seek to distribute the estate to the decedent’s surviving parents or to surviving descendants of the decedent’s parents. If there are none to inherit who are descendants of the parents of the decedent, the State will seek to distribute the intestate estate to both the decedent’s paternal and maternal grandparents or their descendants.
There are additional nuances and situations which can significantly alter the basic rules of intestate succession. It is best to speak with an attorney to understand how these rules might apply to your specific situation.
| Arizona’s Basic Rules of Intestate Succession | |
|---|---|
If decedent is survived by: | Who will inherit: |
Spouse but no surviving children | Spouse inherits entire estate |
Children but no surviving spouse | Children inherit entire estate |
Spouse and at least one surviving child that is not a biological descendant of spouse | Spouse takes ½ of decedents separate property (but not the decedent’s ½ of the community property) Children take the other ½ of decedent’s separate property and the decedent’s ½ share of the community property |
Parent(s) but no surviving spouse or descendants | Parents equally or to sole surviving parent |
Siblings but no surviving spouse, descendants, or parents | Siblings inherit entire estate |
Grandparent(s) but no surviving spouse, descendants, parents, siblings | Surviving grandparents inherit entire estate, divided between surviving paternal and maternal grandparents or all to sole surviving grandparent |
What property is vs. is not part of the estate and distributed through the probate court?
Generally, property which is titled solely in the name of a decedent and has no designated beneficiary is subject to probate. This is true even if the decedent leaves a valid will. A will does not cause the estate to avoid probate. If property is owned jointly with a right of survivorship, has a designated beneficiary upon death, or is held in a revocable trust, it is generally not subject to probate.
| Assets Subject to Probate vs. Not Subject to Probate | |
|---|---|
Subject to Probate: | Not Subject to Probate: |
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