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If your loved one has passed away in Arizona, it’s likely that some or all of their estate must go through probate. Below, a Phoenix probate lawyer explains what to expect during probate proceedings and what you must do if you’re the estate’s administrator.

What Is Probate?

Probate is a legal process that determines whether a deceased’s will is valid so that their personal representative can distribute assets according to their wishes. According to Arizona probate law, nearly all assets must go through probate.

The estate must typically go through probate even if the deceased had no will. In this case, Arizona intestate succession laws determine who takes ownership of which assets and how much.

However, there are exceptions. If the value of the deceased’s personal property is less than $75,000 or they have less than $100,000 in equity in real property (their house or land), Arizona law doesn’t require the estate to go through the full probate process. Instead, heirs can use small estate affidavits to gather the deceased’s assets.

Types of Probate Proceedings

Arizona has three types of probate proceedings, which we’ll outline below.

Informal Probate

Informal probate is ideal if no heir challenges the deceased’s will. The court will appoint a personal representative (either the person named in the will or someone else) who will carry out their probate duties as legally required.

Informal probate is the fastest and least expensive option, as it requires minimal court oversight.

Formal Probate

The formal probate process may be required if:

• Heirs can’t agree on who will handle probate estate administration
• The deceased had no will, or heirs cannot find the will
• Heirs challenge the validity of the will

The court will hold hearings to resolve any issues. Once this is done, the representative can carry out their probate administration duties.

Supervised Probate

During supervised probate, the court oversees every part of the probate process. Supervised probate may be required if the court feels that it must protect the interests of a creditor, inheritor, or other interested party. Any interested party of the estate can request supervised probate, but that doesn’t necessarily mean the court will agree.

The Probate Process Explained

The probate process doesn’t start automatically. First, the person who wants to serve as personal representative must file the deceased’s will and a petition with the probate court.

The court will determine the validity of the will and give the personal representative documents called “letters of administration” depicting their right to manage the estate. Note that the court won’t furnish letters of administration until after the representative completes probate estate administration training (this training isn’t required if they are a licensed fiduciary).

In some cases, the probate court must choose someone other than the petitioner to serve as representative. This can happen when:

• The deceased had no will
• The deceased didn’t name a representative for probate in their will
• The person named in the will either doesn’t want to serve or isn’t qualified to serve
• The person named in the will has passed away or is otherwise unavailable to serve

Once the probate court names a representative, this person has 30 days to notify creditors and heirs of the deceased’s passing per Arizona law. They must also place a notice to creditors in a local newspaper for three weeks. Creditors have four months from the date of posting the notice to make claims on the estate.

Next, the personal representative must gather all assets in the deceased’s estate. Once that’s done, they will pay creditors from the estate and then distribute assets to heirs according to the will. Finally, the representative must file a petition with the probate court to close the estate.

The above is a rather simplified explanation of the probate process. Estate administrators have many other duties, including:

• Applying for an EIN (Employer Identification Number) for estates
• Creating an inventory of assets in the estate
• Ordering an appraisal to determine asset value, if necessary
• Safeguarding the estate’s assets
• Maintaining estate assets to preserve their value
• Categorizing invoices
• Paying administration costs and debts of the estate
• Filing the deceased’s final tax returns from the estate

As you can see, handling probate matters is a complicated job, even for smaller estates. However, with guidance from our probate lawyers, it isn’t one our clients must handle alone.

If you need help handling an estate for your loved one, reach out to a Phoenix probate lawyer at our law office. At our family law firm, probate attorneys can answer questions and guide you through complex probate matters.

Issues That Can Arise During the Probate Process in Phoenix, Arizona

If all goes well, representatives can finish the probate estate administration process in just a few months. However, it is common for disputes to arise, which can slow the legal process down. These include:

• An heir cannot find the will of their family member, or the will is outdated. If this happens, the court must decide how to distribute the deceased’s assets according to Arizona law.
• A family member argues that the will is invalid or doesn’t truly reflect the wishes of their loved one. This commonly occurs when disgruntled heirs feel that their loved one didn’t leave them enough money, or perhaps the deceased left them out of the will entirely. In this case, the estate may need to go through the supervised probate or formal probate process. A Phoenix probate lawyer in AZ can help guide you through the process.
• The deceased lacked the “necessary capacity” to execute a will before death. For instance, perhaps they created the will while they had dementia or another condition that affected their mental state. If you suspect that the deceased lacked capacity, contact a Phoenix probate attorney.
• The deceased created their will while under duress. For example, perhaps their son threatened to stop visiting them if they didn’t increase their inheritance. It can be hard to prove that the deceased created their will under duress, so if you suspect this, call a Phoenix probate attorney for help.
• The administrator can’t find an asset named in the will. Maybe Grandma’s will mentions a safe full of valuable jewelry, for instance, but you can’t find it anywhere even after combing through her house. Our attorneys in Phoenix may be able to help you track down documents pointing to the asset’s location.
• The administrator can’t locate all heirs of the estate. For example, perhaps the will mentions a long-lost cousin, but this cousin has changed their name or moved out of the country. An estate planning attorney in Phoenix can help you locate missing heirs.
• The executor makes a mistake, deliberately misrepresents the deceased’s intentions, or fails to uphold the duties of estate administration. For instance, the executor failed to notify creditors or pay the deceased’s final taxes as legally required. If you’re an heir who is unhappy with the executor’s actions, call a Phoenix probate attorney.

How To Avoid Probate for Estates in Phoenix, AZ

If you’d like to spare your loved ones from the probate process after your death, you have several options. A probate attorney in Phoenix explains these below.

Payable-on-Death (POD) Designations for Bank Accounts

If you have an AZ bank account, such as a checking or savings account, you can use a POD designation to name a beneficiary for the account’s contents. The beneficiary doesn’t have access to the money until you pass away, and you can still spend it as you like before then.

If you need help creating a POD designation, call a probate attorney from our law office in AZ.

Transfer-on-Death (TOD) Registration for Securities

Do you own stocks or bonds? If so, you can use a TOD registration to name a beneficiary for your account. Rather than going through probate proceedings, the beneficiary will deal directly with the brokerage company to take ownership of the account.

TOD Registration for Vehicles

Just as you can with stocks and bonds, you can use a TOD registration to name a beneficiary for vehicles in your estate. Arizona is one of only a few states that allow this. To do this, you must fill out a form at your nearest AZ Motor Vehicle Division office. You must have the form notarized to validate it.

Right of Survivorship for Real Property

Many clients ask our probate attorneys what will happen to the home purchased with their spouse when they pass away. Arizona is a community property state, which means when one spouse dies, the surviving spouse retains ownership of half of the home while heirs of the deceased retain smaller shares of the other half.

You can also take full ownership of real property through right of survivorship. This is called “tenancy by the entirety.” Tenancy by the entirety doesn’t kick in automatically, so property owners must specify their wishes in the property’s title.

Community property with right of survivorship has a few other benefits. One spouse alone can’t incur debts against this type of property, and if they do, their assets are shielded from creditors’ claims during probate.

Revocable Living Trust

Setting up a revocable living trust is an excellent way to avoid probate in Phoenix, and our Arizona estate planning family law firm recommends this option to many clients.

Living trusts are similar to wills in that you can name who will take ownership of specific assets, such as personal and real property, after you pass away. The main difference is that you must name a trustee to manage and distribute assets placed in the trust after your passing.

You can put nearly any type of asset into a trust, including:

• Bank accounts
• Cash
• Safe deposit boxes
• Stocks and bonds
• Personal property, such as antiques and jewelry
• Real property, such as a home or land
• Life insurance policies
• Non-qualified annuities

Some people like to put 401(k)s and IRAs in their trust, but our Arizona probate law offices wouldn’t recommend doing this. That’s because if you change the ownership structure of your retirement plan, the IRS considers it an early withdrawal. If you’re younger than 59.5 years old, you’ll have to pay a 10% early withdrawal penalty.

Once you’ve set up a revocable living trust in AZ, you can name yourself as the trustee. You have the power to add or remove assets, change beneficiaries, or even terminate the trust at any time.

Revocable trusts can take effect before you die, too. If you become incapacitated or too ill to manage the trust’s assets, your successor trustee can do it for you. Once you pass away, a revocable living trust typically becomes irrevocable.

You may wish to set up an irrevocable trust rather than a revocable one. With an irrevocable trust, the trust itself owns the assets, not you. You cannot designate yourself as the trustee, and once you’ve added assets and named your beneficiaries, it’s very difficult (sometimes impossible) to change those terms. If you have this type of trust and want to change the terms, you’ll need legal representation from a good estate planning law firm.

Irrevocable trusts sound very restrictive, so why would you choose one for your estate? At our estate planning law offices, many clients prefer irrevocable trusts for the protections they offer. Such a trust protects the assets within from creditors and lawsuits. That means if someone sues you and tries to come after your estate, they’re out of luck because you no longer legally own the assets in the trust.

Irrevocable trusts also allow you to reduce your taxable estate, which means more money may be available to heirs after your passing. Plus, assets in an irrevocable trust aren’t taken into account for government programs, such as Medicaid and Medicare. That could be helpful if you need nursing home care and don’t want to spend down all of your assets to qualify for assistance.

Whether you opt for a revocable or irrevocable trust, the process of setting one up can be rather involved and complicated. If you’d like to set up a trust to protect your estate, contact our Phoenix probate attorneys.

How Our Phoenix Probate Lawyers Can Help

Deciphering the complex Arizona probate law can feel overwhelming, and the last thing you want is to deal with probate proceedings while grieving. It’s easy to make mistakes during this legal process, especially if you’re unfamiliar with probate and Arizona law.

But with the help of probate attorneys from our law offices, clients don’t need to go through probate proceedings alone. Our probate lawyers can either serve as advisors who answer questions or take a more hands-on approach to help settle your loved one’s estate in Arizona.

Our probate attorneys can assist the estate’s personal representative with any probate matter, including:

• Identifying all assets in the estate
• Filing all necessary court documents
• Filing the deceased’s final tax return
• Paying estate and inheritance taxes
• Making final distributions to beneficiaries
• Retitling assets in beneficiaries’ names
• Resolving disputes over the validity of wills

Our Phoenix probate lawyers can also tell you whether a will qualifies for the simplified probate process for smaller estates. Per Arizona law, smaller estates are those that contain:

• Personal property valued at less than $75,000
• Real property valued at less than $100,000

If the estate meets these requirements, our Phoenix probate attorneys can help clients apply for the necessary small estate affidavits.

Do You Need a Phoenix Probate Lawyer To Administer Estates in Arizona?

You don’t necessarily need to hire probate lawyers to manage an estate, as it’s possible to open probate proceedings yourself. If you have a small estate to probate and no family member disputes the will, you may not require the help of a probate attorney.

However, if you’re having trouble tracking down assets from the estate or an heir contests the will, you could benefit from the guidance of our probate lawyers. Our probate lawyers thoroughly understand Arizona law and will help you settle your loved one’s estate promptly.

Our probate lawyers can help with any probate matter, including situations like these:

• You need to open probate in AZ but aren’t sure where to start.
• Your grandmother left your brother out of the will, but he claims this must have been a mistake.
• You know the deceased was in a lot of debt, but you’re having trouble finding all of their creditors.
• The deceased stopped paying taxes in the last few years before they died. Now you’re responsible for paying those back taxes, and you don’t know where to begin.
• The deceased told you they had a will, but you can’t find it anywhere.
• You think the estate’s personal representative may be mismanaging assets.

No matter your situation, a probate attorney from Lincoln & Wenk is here for you.

Contact Lincoln & Wenk for Probate Legal Representation in Arizona

Regardless of how prepared you are, it’s easy for complications to arise during the probate process in Arizona. Whether a family member is disputing the will, you’re unsure how to give notice to creditors, or you just need a lawyer to tell you how to open probate in AZ, our probate attorneys can help.

To speak with a Phoenix probate lawyer from our law office, call Lincoln & Wenk at (623) 294-2464.