In the probate court

The word probate derives from the latin word “probare” which means “to prove.”  In the legal process of probate those who claim an interest in the property of a deceased person must prove to a court: (1) that they are entitled act for the deceased person; and (2) that they are entitled to receive the deceased person’s property under a valid will, if there is a will, or under the laws of intestacy, if no will exists.  The legal process of probate begins when those interested in the decedent’s estate file a petition with the Superior Court of Arizona to appoint a personal representative.

Not all property is subject to probate.  For example, the law does not require property held in trust to go through the probate process.  Additionally, the law also provides its own devices (such as joint tenancy) for transferring property without the scrutiny of a probate court.  Here’s a decision tree to help you determine whether a probate is necessary:

Personal Property

Is the value of all of the deceased person’s personal property not held in trust or transferred by operation of law (such as by joint tenancy or pay-on-death) less than $75,000?

Yes:   Arizona Revised Statutes (“ARS”) § 14-3971(B) allows the property to be transferred by an affidavit 30 days after the date of death.

No: A probate is required.

Real Property

Is the value of the deceased person’s Arizona real property which is not held in trust or which does not pass by operation of law (such as by joint tenancy or beneficiary deed) less than $100,000?

Yes:  ARS §14-3971(E) allows the property to be transferred by an affidavit that is filed with the court and recorded in the county where the real property is located; however, the property cannot be conveyed for six months after date of death.

No:     A probate is required.

We Can Help!

Other factors may warrant the filing of a probate action even if the decedent’s property is not required to go through probate.  If you are involved or anticipate being involved with the estate of a deceased person, either as a beneficiary, a personal representative or a successor trustee, it is important that you consult with a qualified estate planning attorney concerning the application of probate to the decedent’s estate.   We’re here to help!  Contact Steve West or Curtis Chipman now at 480-461-5300.