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Do I Need to Probate My Deceased Parent’s Estate?

April 7, 2015 | Uncategorized | 0 comments

Question: Do I need to probate my deceased mother’s (or father’s) estate?

Answer: If the estate is a “small estate” under Arizona law, you do not need to probate the estate, petition for appointment as the personal representative of the estate, or file any similar paperwork with the Probate Court. You will, however, need to file one or more Small Estate Affidavits (i.e. Affidavit of Transfer of Title to Real Property) to gain control of property held in your parent’s name. This is a simple and inexpensive process that the Prescott Law Group routinely handles for clients.

SMALL ESTATES

Arizona has developed a relatively simple resolution for those instances where the total value of the assets in an Estate are small enough that involving court oversight is simply not efficient or a productive use of court time. Commonly referred to as “small estates,” they typically occur in three different scenarios: (1) claiming a deceased spouse’s wages of $5,000 or less, (2) when the total personal property in an estate is $75,000 or less, and/or (3) when the total real property in an estate is valued at $100,000 or less. Note that property held in trust is not counted when ascertaining whether the estate is small estate.

Wages of Spouse: An individual claiming a deceased spouse’s wages can do so immediately following their passing by presenting to the employer a signed affidavit stating that (1) the wages being held are valued at $5,000 or less, (2) that the claimant is the deceased’s spouse, or authorized to act on the behalf of the spouse, (3) no application for appointment of Personal Representative is pending or has been granted. If one has been appointed, a small estate affidavit may still be used if it has been more than a year since the closing statement in a probate was filed. A.R.S. §14-3971(A). It is interesting to note that the statute states that the any employer owing wages “shall pay” to the spouse, implying that the employer cannot reasonably refuse.

Personal Property: An individual can transfer title to a vehicle, stock ownership in a company, or claim any tangible property by presenting an affidavit stating that (1) the total value of all personal property valued at the date of death, accounting for liens and encumbrances, is $75,000 or less, (2) more than thirty (30) days have elapsed since the passing of the decedent, (3) and that the individual is entitled to the property, and (4) no application for appointment of Personal Representative is pending or has been granted, or if a Personal Representative has been appointed, a small estate affidavit may still be used if it has been more than a year since the closing statement in a probate was filed. A.R.S. §14-3971(B). For vehicle title transfers, Arizona Motor Vehicle Division has forms already prepared and seem to be fairly efficient in transferring title.

Real Property: An individual can take title to real property of a decedent by submitting to the court in the county where the property is located an affidavit stating that (1) the total value of the property as found on the assessor’s rolls in the year the decedent dies is $100,000 or less accounting for liens and encumbrances, (2) more than 6 months have elapsed since the passing, (3) all funeral expenses and final medical bills have been paid, (4) no federal estate tax is owed, (5) no personal representative has been appointed or if they have its been more than a year since a closing statement was filed, (6) the person or persons signing the affidavit are entitled to the property by intestacy, family allowance, homestead exemption or by Last Will, the original of which must be attached. A.R.S. §14-3971(E). Arizona statutes specifically refer to the value of the property as it appears on the assessor’s rolls which typically differs from the value assessed by an appraiser and may be significantly lower than the actual value of the property.

It should be noted that in many cases the value of the assets in an estate are not known from the outset when a probate is filed. Should the total value of the estate (taking into consideration all the “off the top” expenses i.e. homestead, exempt property, family allowance, costs and expenses of administration, funeral expenses, ect.) not exceed the small estate values stated above, “the Personal Representative, without giving notice to creditors, may immediately disburse and distribute the estate to the persons entitled thereto and file a closing statement.” A.R.S. §14-3973.

PROBATE

In cases where the value of assets exceeds the small estate allowances, probate is required and is filed as either a formal or informal probate (sometimes referred to as supervised or non-supervised administration). For all intents and purposes, most estates are handled informally and are preferred when appropriate. However, where a question exists as to which version of a Last Will is controlling, its validity, or the beneficiaries entitled to receive an inheritance, such that a hearing and litigation is required to decide those issues, a formal probate is required.

 

The Prescott Law Group is experienced in handling all aspects of estate planning and administration. If you need help wrapping up your loved one’s affairs, please contact us at (928) 445-1909 for professional, compassionate assistance.

 






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