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PROBATE INFORMATION

Read the WARNING! first.

For probate assistance in any Arizona county, call us at 928/445-3230.

For information about the Duties of Executors (personal representatives), click here.

For information about fees and costs for representing beneficiaries and personal representatives, click here. To download our probate questionnaire, click here.

To arrange a probate consultation, call 928-445-3230. Use the checklist, below, to prepare for the consultation:

Decedent’s date of death

Decedent’s full legal name

Decedent’s place of death

Decedent’s usual residence at time of death

General description of assets owned by decedent

General description of debts owed by decedent

Identity of person named in Will as the personal representative (executor)

Location of any safe deposit box owned by decedent

Location of decedent’s bank accounts

Location of each parcel of real estate owned by decedent

Location of instructions, if any, concerning funeral arrangements

Name of decedent’s spouse

Names of decedent’s children

Location of original Last Will & Testament

Location of any life insurance policies on decedent

Estimated value of all assets owned by decedent

Estimated amount of all debts owed by decedent

For probate assistance in any Arizona county, call us at 928/445-3230.

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 of assets involved in the estate 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.

In many cases, our fee for ordinary legal services in the administration of an uncontested, informal probate estate ranges from a few hundred dollars to a few percent of the value of the estate, plus out-of-pocket costs. Typical costs include court filing fees, telephone calls, postage and copying costs, publishing notices of probate and other necessary expenses. This estimate assumes that no litigation is involved. An advance for costs is usually required.

Fees for a formal probate or a supervised proceeding will usually be significantly greater than the fees involved in an uncontested informal probate.

In some states, like California, probate fees are set by statute. For example California Probate Code Section 10810 states:

(a) Subject to the provisions of this part, for ordinary services the attorney for the personal representative shall receive compensation based on the value of the estate accounted for by the personal representative, as follows: (1) Four percent on the first fifteen thousand dollars ($15,000). (2) Three percent on the next eighty-five thousand dollars ($85,000). (3) Two percent on the next nine hundred thousand dollars ($900,000). (4) One percent on the next nine million dollars ($9,000,000). (5) One-half of 1 percent on the next fifteen million dollars ($15,000,000). (6) For all above twenty-five million dollars ($25,000,000), a reasonable amount to be determined by the court. (b) For the purposes of this section, the value of the estate accounted for by the personal representative is the total amount of the appraisal of property in the inventory, plus gains over the appraisal value on sales, plus receipts, less losses from the appraisal value on sales, without reference to encumbrances or other obligations on estate property.

The Florida statutes, at Section 733.6171(3), outline what is presumed to be reasonable compensation:

$1,500.00 for estates of less than $40,000.00;
$2,250.00 for estates of less than $70,000.00;
$3,000.00 for estates of less than $100,000.00;
Three (3) percent of the value of the estate from $100,000.00 to $1 million;
Two and one-half (2 1/2) percent of the estate value from $1 million to $3 million.

Pennsylvania does not set the fees by statute. For an example of the guidelines used by some Pennsylvania courts to determine the reasonableness of fees, click here.

The above "reasonable fees" are for ordinary legal services only and do not include such things as will contests, contested claims, tax advice and ancillary administration.

Estate Tax Waiver

In Arizona, it may be 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. An 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 may have to 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 always required.

For help with an Arizona probate call our office for a telephonic consultation*. Call 928/445-3230 or contact us.

*There may be a consultation fee, depending upon the nature of your matter. Call the office for details.