PROBATE

What is Probate?

Originally the term "probate" meant "to prove the Will," but the term has grown to include the administration of the decedent's estate. There are several ways to proceed in handling a given estate. Essentially an estate may be handled either (1) as a single "supervised" administration or (2) as a series of separate proceedings which may be either "formal" or "informal." Supervised administration is reserved for complex estates. Informal proceedings are used to handle uncontested matters. Formal proceedings are available if there is a dispute or if someone wants a final court adjudication to forestall later disagreements.

Most probate proceedings are informal. Certain forms must be filed with the court, but the court is not involved in collecting, managing, valuing, or distributing the assets; and, once appointed, the personal representative (the executor or executrix is called "personal representative" in Arizona) can do virtually anything with the property which the decedent could have done.

When is the "Reading of the Will?"

Contrary to the images portrayed on television and the movies, in Arizona there is usually no formal "Reading of the Will." Once a Will is filed for probate it becomes a public record and is available for inspection by anyone. Persons interested in the Estate are entitled to receive a copy of the Will, and they usually read it in the privacy of their own homes.

Why is Probate Sometimes Necessary?

The primary purpose and perhaps the only purpose, of most probates is to enable the beneficiary of property to show that he/she is the legal owner thereof so that he/she can deal with it as he/she sees fit. Title to assets such as real estate and stocks and bonds usually must be probated to change the title from the decedent to the beneficiary. The probate court gives the personal representative the power to change titles.

Remember, nothing in the law says that when a person dies his/her estate must be probated. The purpose of probate (again, in the usual, uncomplicated estate) is to "change title." Remembering that will help you understand what has to be probated, and why, and how to avoid probate.

How Much Does Probate Cost?

The cost of conducting a probate proceeding can range from a few hundred dollars to thousands of dollars, depending upon the size of the estate, the type and complexity of assets involved in the estate, the number of heirs or beneficiaries involved, and the nature of the probate proceeding (formal, informal, supervised or unsupervised). Generally, the more assets and the more complicated they are, or the more people involved in the process, the more it costs. It is usually impossible at beginning of any probate proceeding to tell exactly how much time and effort will be required to properly bring that proceeding to a close. Fees in probate administration can be set in a number of ways. Some Arizona lawyers charge a percentage of the size of the estate to handle a probate matter, while other lawyers either bill by the hour or charge a flat fee. Fees for probate proceedings in Arizona are not regulated (except that they must be "reasonable"), they are subject to negotiation, and they may vary depending upon the location or size of the law firm involved. For additional information click here.

Estate Tax Waiver

In Arizona, it is sometimes necessary to obtain an "Estate Tax Waiver" from the Arizona Department of Revenue in order to clear title to real property, including joint tenancy property. The Estate Tax Waiver is obtained by preparing a Report of Personal Representative of Decedent and supplying the Department of Revenue with information about the decedent's estate. Once a waiver is obtained, it must be recorded in each county where the decedent owned real property.

Alternatives to Probate

There are a number of alternatives to probate, even after a person has died. Depending upon the size of the estate, the manner in which title was held, and the type of asset involved, it may be possible to transfer title without the need for a probate. A competent attorney can advise you about when probate is required and when it is not necessary.

What About Joint Tenancy?

Although joint tenancy property does not require a probate, some work may be necessary to clear the title. For example, if land is held in joint tenancy, an Estate Tax Waiver may be necessary and recording the death certificate is almost always required.

For probate assistance in Arizona, call us at 928/445-3230 or click here to contact us.