Probate

When someone passes, their debts need to be paid and assets distributed, and any disputes among beneficiaries and interested parties must be resolved.  Welcome to probate in Arizona. Robert Pearson Law provides legal counseling and litigation services in the probate context. We can help you leave your assets to the people you want, in accordance with your overall wishes, leaving a smoother and often cheaper process for your loved ones when you pass; navigate the process and legal duties of administering an estate; and, when they arise, resolve disputes between beneficiaries, heirs, and personal representatives, both in and out of court.

One of the first steps in the probate process is to identify what assets are part of the “probate estate.”

Some assets of a decedent do not become part of the probate estate. These include death-benefit payments under life insurance policies; bank accounts with POD designations; property in living trusts; property held as joint tenants with right of survivorship; pensions, IRAs, and retirement benefits; and real-estate subject to a beneficiary deed. So, for this property of a decedent, a personal representative or executor will not take title and distribute it through a probate proceeding. Instead, the life insurance company will simply pay the beneficiary; the financial institution will simply effectuate the new ownership under the POD; and the real-estate simply transfers to the beneficiary automatically under the recorded beneficiary-deed. There is no probate or court supervision.

On the other hand, property that’s owned solely in the decedent’s name or as a tenant in common (not as a joint tenant) becomes part of the probate estate. That property will be distributed through a probate proceeding (formal or informal) in accordance with the decedent’s will or the intestate statutes, which provide an order of distribution when a person dies without a will.

But sometimes probate can be avoided entirely, even for property that would otherwise be part of the decedent’s probate estate. When the value of a decedent’s personal property and real estate are below certain amounts, probate can be bypassed and property can be collected and transferred through Arizona’s small-estate affidavit procedure. It’s a probate shortcut.

Under the small-estate-affidavit procedure, after a person dies, the decedent’s probate property is collected and transferred using affidavits, instead of petitioning the court to open a probate proceeding to have a personal representative appointed and property collected and distributed under court supervision. To use the procedure, the value of the decedent’s personal property must be below $75,000; and real property below $100,000. The small-estate-affidavit procedure, however, has waiting periods. There’s a 30-day waiting period from the date of death for personal property, and a six-month waiting period for real estate. These waiting periods can be a downside, as probate proceedings for small estates can usually be opened and closed within six months. So, folks who don’t wish to wait, although perhaps more expensive, can still use a probate proceeding to collect and distribute property in small estates.

For those using the small-estate-affidavit procedure, after the affidavits are prepared, the next step is to collect the property. For personal property, typically the affidavit is not filed in court, and is simply presented to the third-party in possession of the decedent’s property. If, for example, the decedent had $25,000 in a bank account with no POD designation, after waiting 30 days from decedent’s death, you could simply present the bank with the affidavit (and a death certificate), and the bank would rely on the affidavit to simply transfer the $25,000 to you. Or, if you were going to transfer title to a car, you’d take the affidavit to the MVD. On the other hand, an affidavit for succession of real estate is filed with the court, along with a death certificate, and also filed with the county recorder’s office.

Again, probate is the process by which the court appoints someone to collect and take title to the decedent’s property, and then to distribute that property according with the terms of a will or the intestacy statutes. Sometimes a probate proceeding is necessary–either because the value of the decedent’s assets is too high, or because the small-estate-affidavit procedure will take too long. Probate proceedings are either “formal” or “informal.”

Informal

An informal probate proceeding has minimal court supervision. An informal probate proceeding can be used if there’s a valid will and no one is contesting it; or to appoint an administrator in intestacy when, after the exercise of reasonable diligence, a will cannot be found. In an informal probate, the probate registrar, rather than the court, can approve the will, appoint the personal representative, and close the estate–all without any hearings. If someone contests the application for an informal proceeding or the will, then the probate must be done through a formal proceeding, with the court supervising the administration and resolving any contested issues. Informal probate proceedings are usually faster and less expensive than formal ones.

Formal

Formal probate proceedings, on the other hand, have more court supervision and are typically used when the value of the estate exceeds a certain dollar amount, or when disputes occur among interested parties. In formal probate proceedings, the court holds hearings to resolve contested issues, like whether a will is valid, who the personal representative should be, or the amount and extent of the beneficiaries’ interests in estate property. Formal probate proceedings can be long and expensive, especially in emotionally charged disputes, or in disputes involving substantial assets.    

If someone has passed and you’ve been named as personal representative, executor, or administrator of their estate–either through being named in a will or by priority under the intestacy statutes–you have an important job with certain obligations. We help folks get appointed as personal representatives or executors, and then guiding them through their administration of the estate, from open to close.

After the estate is opened, administration typically includes identifying and gathering assets; providing notice to heirs, devisees, and creditors; paying bills; distributing assets to beneficiaries; keeping an accounting of assets; and closing the estate. We also help beneficiaries of an estate protect their interests in the estate, including by acquiring information they’re entitled to and monitoring the administration of the estate (sometimes by an unfriendly personal representative), to ensure the personal representative’s compliance with the law and governing documents.

Probate disputes are common. A dispute in a probate proceeding might involve a beneficiary under a will who’s challenging and invalidating a transfer of real property made by an elderly decedent just before death, where substantial evidence exists that the decedent was mentally unable to appreciate their actions at the time of the transfer, or was otherwise under undue influence. Or, a decedent may have left multiple wills, with entirely different distribution directions, and the court must decide whether the wills are valid, and if so, which governs. Although probate proceedings can involve emotionally charged family dynamics, disputes many times can and should be resolved early to save costs and manage risk. In those instances, we can help negotiate and facilitate early, binding resolutions, avoiding protracted, costly litigation.

But some disputes need to be litigated and resolved through the court process. We handle estate and probate litigation from start to finish. Ideally, clients involve us early–right when a dispute arises–so we can help navigate issues and manage risk, through performing an early case-evaluation, generating an objective analysis of the parties’ positions and their strengths and weaknesses. We provide straightforward, no-nonsense advice about the factual and legal realities of the case, so that you can be fully informed and clear-eyed when making important decisions about resolving your estate or probate dispute. Providing professional, thoughtful, diligent litigation services–from start to finish in your estate and probate disputes–we’re with you.