What is Probate?
Probate is a legal proceeding in which a deceased person’s property is distributed to his or her heirs. The beneficiaries of the estate are designated by the deceased in a will; if there is no will, the heirs are designated by Arizona law. The law of the state where the deceased person maintained legal residence at the time of death governs probate proceedings. In addition, the probate law of any other state where the deceased owned property at the time of death controls the probate of those properties.
The Superior Court in the county where the deceased resided at death handles the probate proceeding. Because probate is a court proceeding it is always public. Probate involves appointing a personal representative who, distributes the deceased’s property to the heirs or beneficiaries after paying the debts of the deceased, taxes, and the expenses related to its administration.
Probate in Arizona is a proceeding that can take anywhere from six to nine months to conclude. If any problems arise, the proceedings can take longer. Probate is not needed in every circumstance, only where upon death:
• Real property over $75,000 in value titled in the deceased’s name exists,
• Personal property that exceeds $50,000 in value, or
• Unpaid wages of more than $5,000 after death.
Not All Estates Need To Be Probated
The need for probate is not determined by whether or not the decedent had a will. It is determined by the type of property the decedent owned at the time of death and how that property was held. Another way of thinking about “not needing probate” is to effectively avoid probate. For example, any property held as “joint tenants with rights of survivorship” is not subject to probate as it passes automatically upon death of one of the joint tenants to the other joint tenant. Also, a life insurance policy or a 401(k) are exempt from probate because these are product of a contract and are therefore governed by the contract. Likewise, a revocable living trust is another way to avoid probate. A trust is capable of holding onto property longer than a will, as a will comes alive when its creator dies. A trust on the other hand can last beyond death and afford greater control over assets and their distribution.
Divorce And Automatic Revocation On Probate Or Non-probate Transfers.
Arizona has adopted a statute (A.R.S. § 14-2804) that has the effect of automatically invalidating a divorced spouse as the beneficiary under both the former spouse’s will and their life insurance policy. Additionally, this statute converts a “joint tenancy with right of survivorship” into a tenancy in common. The effect is that the deceased former spouse’s share of the property does not then automatically pass to the surviving former spouse. The law assumes that when a couple divorces that they would not intend to continue to provide for that spouse. However, this has the effect of changing the designated beneficiaries automatically which may or may not be desired.
A review with your probate lawyer will determine whether or not an estate must be probated. In addition, your attorney will discuss with you any effects laws such as the above one have on your will giving you the knowledge and opportunity to rectify any automatic changes you wish to avoid. Lawyers normally charge an hourly fee for probate related services. To assist you in beginning the process of probating an estate, you may use the attached probate worksheet.
Speak With A Probate Attorney
Contact our office or call 602-277-4441 to speak with one of our experienced probate attorneys at Platt & Westby, P.C., to assist you in any probate related needs.