What Is The Probate Process In Arizona?
Probate is the legal process used to settle a deceased person’s estate. In the probate process, outstanding debts are settled, any necessary tax returns are filed, and assets are transferred to beneficiaries. Most Arizona estates must pass through this process. There are two exceptions:
- If the deceased had no property in their personal name that did not transfer automatically on death, or
- If the estate includes no more than $75,000 in personal property and $100,000 in real property
In the first situation, there is no estate to settle. In the second, the estate can be settled through a simplified process for small estates. All other estates will have to go through the probate process, though most will be administered informally. The informal probate process involves less oversight by the probate court. However, if someone contests the will or other adversarial proceedings arise, formal probate will be required.
What is Included in the Probate Estate?
A deceased person’s estate includes property that they owned at the time of their death, with the exception of property that:
- Is jointly owned by someone else with rights of survivorship, and so transfers automatically upon death,
- Is titled with a transfer on death provision, or
- Has a listed beneficiary
Property held in a living trust is not part of the estate. However, don’t assume that a living trust will be the sole mechanism for transferring assets. It is very common for people who use living trusts as the primary means of transferring property after death to also have property they hold personally with rights of survivorship or with a listed beneficiary. It’s also common for some property to have slipped through the cracks and not been titled to the trust as it was acquired. That’s why many people who use living trusts also have a will, generally known as a “pour over will.” This type of will takes any property that didn’t make it into the trust in the deceased’s lifetime and isn’t transferred through survivorship rights or to a beneficiary and dumps it into the trust.
Administering the Estate
(1) Appointing a Personal Representative
The person charged with administering an estate in Arizona is called the personal representative. Usually, the personal representative is the person who was appointed in the deceased’s will. However, a person who wants to serve as personal representative must apply and be appointed by the court, even if they were named in the will.
In some cases, someone else will have to serve as personal representative because:
- The deceased didn’t choose a personal representative in their will
- The deceased died without a will
- The personal representative named in the will has died or is otherwise unavailable
- The personal representative who was named in the will declines to serve
- The court determines that the person appointed is not qualified to serve
Arizona law lists several other people who are generally qualified to apply to serve as personal representative, including the surviving spouse, adult children, parents, siblings, or those entitled to inherit. If 45 days pass without a personal representative being appointed, a creditor may apply to serve.
(2) Duties of an Arizona Personal Representative
The personal representative of an Arizona estate has a big job. In fact, administering an estate is so complex that a personal representative who is not a licensed fiduciary is required to undergo training. This training must be completed before letters of administration can be issued empowering the personal representative to act on behalf of the estate.
Some of the core duties of the personal representative include:
- Identifying, gathering and safeguarding assets of the estate
- Maintenance as necessary to preserve the value of assets
- Identifying heirs
- Notifying interested parties
- Identifying and providing notice to known creditors
- Publishing a general notice
- Receiving and categorizing invoices
- Paying costs of administration, certain expenses, taxes, and other debts of the estate in order of priority
- Recording letters of appointment in all relevant jurisdictions
- Filing the deceased’s final tax returns
- Obtaining an EIN for the estate
- Taking control of the deceased’s financial accounts
- Keeping a detailed record of all transactions
- Creating an inventory of estate assets
- Securing appraisals as necessary to determine the value of estate assets
- Creating a distribution plan and securing approval of the court
- Making in-kind and cash distributions to heirs and beneficiaries
- Close out the estate
The personal representative generally isn’t responsible for managing assets that transfer on death, such as bank accounts that are jointly held with survivorship rights or a retirement account with a beneficiary. However, the personal representative will be the one inventorying assets, which means that they will likely be the one to identify these assets and notify the beneficiary or person with rights of survivorship.
Fortunately, you don’t have to sort all this out on your own. The training provided for a personal representative is a good starting point, but each of the steps described above has its own set of procedures and requirements. The job can be overwhelming, especially for a personal representative who isn’t experienced with the probate process, or who has significant other demands on their time. An experienced Arizona probate lawyer can be your most valuable resource.
Hiring a Probate Lawyer in Arizona
If you’ve been appointed personal representative of an estate and you need the assistance of an experienced probate lawyer, reasonable attorney’s fees will be paid by the estate. So, you have nothing to lose by getting the help you need to ensure that you can fulfill your duties to the heirs and beneficiaries without unnecessary stress or missteps.
The probate lawyers at Lincoln & Wenk have extensive experience with all facets of the estate planning and probate processes, including probate litigation. We understand how stressful the role of personal representative can be, especially when you are mourning the loss of someone close and potentially dealing with family conflict. Our goal isn’t just to help you fulfill your duties in an orderly manner, but to make the whole process as simple and stress-free as possible.
To learn more about how we can help, call 623-294-2464 right now, or fill out the contact form on this site.