What is probate?
Probate is the legal process in which the court oversees distribution of a person’s assets when they pass away. The court names an individual called a personal representative to manage the estate (the deceased person’s money and property) and supervises the process of contacting heirs and beneficiaries, paying debts, and distributing assets.
What is probate of Will?
When someone dies with a Last Will and Testament, the probate court must verify that the Will is authentic and oversee the distribution of assets according to its instructions. So, having a Will doesn’t mean your estate avoids probate, but it does make the process easier and more reflective of your wishes.
What is the probate process in Arizona?
Steps in the probate process include:
Initiate Probate and Prove the Will: The personal representative named in the Last Will and Testament serves as the administrator of the estate. If the person died intestate (without a Will) or if the personal representative is unable to serve (for instance, because he or she has already died), the court will appoint a personal representative. Once the court has received the personal representative's petition for probate, it must verify that the Will is valid before opening the estate. If there is any question about the validity of the Will, it's essential that you seek the help of an attorney immediately.
Letters of Administration: The court then provides the formally appointed personal representative—whether the person named in the Will or otherwise appointed by the court—with letters of administration. These legal documents give the personal representative the authority to handle the deceased person's financial affairs.
Post or Waive Bond: In general, under Arizona law, personal representatives must be bonded, although this requirement may be waived by the heirs and devisees or by the Will itself. The court has discretion to modify the bond amount or even waive the requirement entirely, however, which can expedite the process. That's why it's usually in the personal representative's interest to seek a waiver—and to get a probate lawyer's help.
Provide Notice: Under Arizona law, the personal representative must provide notice to inheritors and creditors within 30 days of death. This process includes publishing notice in a local newspaper and mailing notice to all known creditors. We can help the personal representative make sure notice is properly provided at this stage.
Gather and Inventory Assets: The personal representative has the legal right to take possession of all estate property unless otherwise specified in the Will, although he or she also has discretion to leave some items in the hands of people who are entitled to receive them. One of the most important, if not the most important part of the personal representative's job is to provide a detailed and accurate inventory of all estate property. This includes the nature, value and any applicable tax liens or encumbrance on each item of property, and it must be done within 90 days of the day of appointment.
Pay Taxes: There is no estate tax in Arizona, but if the estate is valued at a high enough amount to qualify for the federal estate tax, the personal representative is responsible for paying it. In addition, property taxes and other applicable taxes must be paid. One of the key benefits of working with our law firm on your case is we have extensive experience in probate and tax law. For many of our clients, these insights allow us to minimize tax obligations and preserve more of the estate for the heirs.
Manage and Preserve the Estate: Personal representatives in Arizona have a very high duty of care, called a fiduciary duty, to manage the estate carefully. That means using estate funds for legitimate expenses—such as funeral expenses, court costs, and payments to creditors and lenders—but not for frivolous spending. Any breach of this duty of care can cause the personal representative to be liable to the decedent's heirs. That's why it is in the personal representative's interest to consult with an experienced attorney from our law firm at each stage in the process.
Set Aside Community Property: If the deceased person was married, the personal representative must make an account to set aside any community property—that is, property that belongs to the married couple in equal shares - before transferring the remaining property. Such divisions can be highly complex, but we know how to assist with cases involving community property.
Distribute the Estate Property: Once community property has been set aside, creditors have been repaid, and tax obligations have been met, the personal representative then divides and distributes the remainder of the estate. This must be done in accordance with the terms of the Will, or if there is no Will, in accordance with the Arizona Probate Code. The personal representative is also responsible for documenting each transfer of property.
What types of assets do and don’t go through probate?
Certain types of assets, regardless of size, skip probate entirely because they transfer automatically on the owner’s passing. These assets include:
- Property in a revocable trust with a named successor trustee,
- Real estate owned in joint tenancy or community property with a right of survivorship,
- Life insurance policies, retirement accounts, and similar assets with a designated beneficiary, and
- Bank accounts with a payable on death (POD) or transfer on death (TOD) clause.
Any assets that don’t transfer automatically must go through probate.
What is the threshold for probate in Arizona?
In general, if the decedent has any assets that don’t transfer automatically on their death, then some form of probate is required. There is no minimum threshold as such. However, if the value of the estate is under $100,000 in real estate and $75,000 in personal property, then the estate can go through “small estate administration,” which is a simplified, informal version of the probate process.
Informal vs. formal probate in Arizona
If an estate is eligible for informal probate based on its size, the personal representative can simply administer the estate and distribute its assets with minimal supervision by the court. The personal representative only needs to file an application; there is no hearing or trial. This process is generally resolved faster than formal probate, which requires a judge’s involvement and formal court proceedings.
Formal probate is required if the estate is valued at more than $75,000 in personal possessions or $100,000 in real property, or if there is no will and the court must distribute the estate according to the laws of intestate succession. Formal probate is also required if the will is contested.
How much does it cost to probate a will in Arizona?
It depends. To start the probate process, you need to pay filing fees with the court, which is usually $300 to $500 depending on the county. Beyond that, the cost varies depending on the size of the estate and whether there are legal challenges or disputes over the course of the process. Only an attorney can tell you what the probate process might cost in your individual situation.
Do you need a lawyer for probate in Arizona?
Legally, you are not required to have a probate attorney. However, the probate process can be quite complex, and if there are any disputes regarding the validity of the estate planning documents or the distribution of assets, good legal counsel can make all the difference. Even if you expect the process to be simple, it’s in your interest to at least speak with an attorney to make sure you know what to expect and whether there are any unexpected issues.
Talk to a Mesa probate attorney who knows the process
We’re ready to advise your family through every step of the Arizona probate process so you have a clear understanding of what to do. We know Arizona probate law, and our legal team's breadth of knowledge as a firm means we’re ready to handle the legal complications that your loved one's death may have created. Contact us today for a free consultation with a Mesa, AZ probate attorney you can trust to put your best interests first.