I often meet families dealing with the death of a loved one. At some point attention inevitably shifts from grieving to the practical questions of what to do with the decedent's possessions. Here are some of the most common questions I receive and my general responses:
What is probate?
Probate is the process of settling the affairs of someone who died and transferring that person's assets to his or her heirs. The process includes collecting the decedent's assets, determining and paying debts, then distributing the remaining assets per the decedent's wishes. If the decedent did not prepare a will or a trust, the assets are instead distributed per Arizona law, specifically Arizona's intestacy laws.
How long does probate take?
Six months in simple cases, longer in complicated cases. Usually probate takes longer if there are family disputes.
How much does probate cost?
Attorney's fees and costs for a relatively simple probate costs $3,500-$5,000. This figure increases in complicated cases, such as cases where there are family disputes.
Is probate required in every case?
No, probate is not always required. Often times, however, probate is required to transfer certain assets out of the deceased's name, such as a house or a bank account. If there are no assets to transfer, there is no need to open a probate.
Probate is sometimes required for other reasons, such as to continue a court action after one party has died, to determine and pay creditors, or so someone can obtain the authority needed to retrieve the decedent's financial records from a bank.
This is only a modest estate, do we still have to open a probate?
Not always. Small estates are exempt from probate, regardless of whether the decedent prepared a will. Specifically, if the decedent's Arizona land is valued at less than $75,000 (which is determined by looking at land's tax assessed value minus any debt owing on the land), this land can sometimes be transferred by simply preparing and filing an Affidavit of Real Property Transfer. Similarly, other property, such as vehicles or bank accounts can be transferred via a personal property affidavit if the total value of these assets is less than $50,000.
There are some restrictions on the use of these other affidavits, including a waiting period, so please contact my office if you have additional questions about these affidavits.
My (father/mother/brother/sister/friend) named me as a pay-on-death beneficiary for their bank account before they died, does that account still need to go through probate?
No, that account skips probate. There are several types of assets that skip probate, including:
-Any financial accounts with a pay-on-death beneficiary designation (sometimes called a transfer-on-death designation);
-Accounts jointly owned with a living person;
-Assets held in a trust, such as a revocable living trust;
-Any land for which the decedent recorded a Beneficiary Deed before his or her death.
My (father/mother/brother/sister/friend) did not make a will, does that mean we must open a probate?
Not necessarily. It does not matter if the decedent prepared a will, what matters are the assets that need to be transferred, a house or bank account, for example. To decide whether probate is required, we look at the assets owned by the decedent and the way in which those assets were titled. I always ask my clients something like: "Are there any assets that you cannot access?" If the answer is "No, we can access everything," probate may not be necessary. If some assets cannot be accessed, a probate may be necessary.
The above answers are merely general responses to some common probate questions. There are many exceptions to these general responses depending upon the particular facts of your case. Please contact my office to speak with me about your case or if you have additional questions