James Rayburn Article


ARIZONA PROBATE FUNDAMENTALS

This is the first of a series of articles intended to provide a basic understanding of Arizona Probate Law, including the definition of probate, the circumstances under which a probate proceeding is necessary, how a probate case is administered, alternatives to probate, and information about available resources to assist those interacting with the Probate Court.

In this first column, we will provide an overview by briefly answering the five standard reporters’ questions about any subject - Why? What? Where? When? How? – with regard to the subject of probate.

WHY SHOULD I CARE ABOUT PROBATE?

There is much truth to the old saying, “The only certainties are death and taxes.”  The disposition of one’s belongings at death is a matter that every person should address, but many do not, either due to neglect or denial.  Many who are suddenly confronted with the death of a relative or friend are unprepared to handle their responsibilities and incur needless angst and expense. 

WHAT IS A “PROBATE”?

The term “probate” comes from the Latin word provare, meaning “to prove,” and is defined by Merriam-Webster’s as “the action or process of proving before a competent judicial authority that a document offered for official recognition and registration as the last will and testament of a deceased person is genuine.”  However, the existence of a will is not a requirement that there be a “probate” of a decedent’s, estate.  In modern usage, the term probate has become synonymous with the process of estate administration after death. The term decedent is the legal term that refers to the deceased. When a person dies “intestate,” meaning without a will, the Arizona Probate Code determines who will be entitled to receive that person’s property.  Will or no will, whether a probate will be necessary depends largely upon the nature and value of the property left in the decedent’s name at his or her own death.  For the purpose of this discussion, the term “probate” will be used with reference to an application or petition to the probate court, which begins a probate court case for the appointment of a personal representative for the administration of a decedent’s estate.

WHERE DOES AN ARIZONA PROBATE TAKE PLACE?

A probate case takes place in the Probate Division of the county of the decedent’s last residence. To find your local court you may wish to use the court locator found on the Arizona Supreme Courts website at www.azcourts.gov/AZ-Courts/AZ-Courts-Locator.

For example in Maricopa County, probate matters are handled by the Probate and Mental Health Division of the Maricopa County Superior Court.  In Maricopa County, most probate matters are handled by the Probate Registrar, who is located in the Old Courthouse in downtown Phoenix, or by Maricopa County Superior Court Commissioners located in each Superior Court location.  In addition to downtown Phoenix, these locations include Northeast Phoenix, Mesa and Surprise.

In addition to probate cases, the Probate Division handles small estate transfers, conservatorships, adult guardianships, and adult adoptions. Many courts have websites that offer detailed information for those needing guidance with Probate Court matters, including forms and instructions. For Maricopa County Superior Court see this website www.superiorcourt.maricopa.gov/.

WHEN IS PROBATE REQUIRED?

When a person dies with assets titled in his or her sole name, a probate proceeding MAY be required.  This depends largely upon the nature and value of the assets that comprise the estate.

Many are misled about the need for a probate as well meaning, but uninformed, persons commonly advise that “You need a probate.”  These may include bank tellers, relatives, friends, insurance companies, accountants and even some attorneys.  With only limited information about the size and composition of the decedent’s estate, it can be irresponsible to offer advice concerning the need for a probate.

A decedent’s estate may be modest, without property that requires a probate administration.  This may be due to a lack of assets of any significant value, or because title to most property owned by the decedent was held in a way that permits passage at death to others by non-probate transfer, such as to a surviving joint tenant.  If the decedent died with only personal property of modest value and cash presenting no title transfer issues, the Arizona Probate Code provides that the property “devolves,” or passes on to the decedent’s successors, who can divide the property without administration, but subject to any creditors’ claims.

Many estates of relatively small value simply don’t require a probate.  Arizona law permits transfers of title or payments to those entitled to receive property of an estate if the total value of property in the estate is (1) personal property with a date of death net value of not more than $75,000.00, and (2) real property with a date of death net value of not more than $100,000.00.  These transfers, which are accomplished with the filing of affidavits for approval by the Probate Court Registrar, do not require the appointment of a personal representative and the expense and time required for the probate of an estate.  A more thorough discussion of this useful and economical process will be presented in a future column.

HOW IS A PROBATE CASE HANDLED?

When a probate case is necessary, a person named by the decedent, or designated by statute, seeks approval by the Superior Court of his or her appointment as Personal Representative of the decedent’s estate.  Following that appointment, the Personal Representative gives notice to all interested parties, gathers the assets of the estates, notifies and settles with creditors, prepares an inventory of estate property, and prepares an estate accounting.  This process requires compliance with governing statutes and court rules, which specify time limits for completion of required actions.  When all requirements have been met, the assets are distributed to those entitled to them and the case is closed.  A discussion of the probate process and administrative steps required will be presented in a future column.  

Contributing Attorney Writer: James Rayburn is an attorney at the Law Offices of James T. Rayburn, where he practices elder law including matters of probate, conservatorships and trusts.


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