Do I Need Probate in Arizona?

When Is Probate Necessary in Arizona?

Probate may be necessary when someone dies owning property in their individual name that cannot otherwise be transferred to the people entitled to receive it.

For example, imagine your father dies owning a home in Arizona. The home is titled solely in his name. It was not transferred to a trust, and there is no beneficiary deed or surviving joint owner who automatically receives the property.

Your father may have left a will saying that you and your sister inherit everything. But the will by itself does not change the name on the deed.

A probate proceeding may be necessary to appoint a personal representative with legal authority to administer the estate and ultimately transfer the property.

On the other hand, if the person's assets pass through a trust, beneficiary designation, joint ownership arrangement, or another non-probate transfer mechanism, a probate proceeding may not be necessary for those assets.

The important question is not simply, “Was there a will?” The better question is: “What did the person own, and how does each asset legally pass after death?”

Does Having a Will Avoid Probate in Arizona?

No. This is one of the most common misunderstandings about probate.

A will tells us who should receive property subject to the will and may nominate the person who should serve as personal representative. But having a will does not necessarily keep an estate out of probate.

For example, if your mother leaves a will giving you her Arizona home, but the home remains titled solely in her name when she dies, the will does not automatically put your name on the deed. Probate or another legally available transfer procedure may still be required.

A properly funded revocable living trust works differently. Property already titled in the trust generally can be administered by the successor trustee without opening probate merely to transfer that trust property.

What Assets Can Pass Without Probate?

Many assets can potentially transfer without probate.

Common examples include assets held in a trust, accounts with valid beneficiary or payable-on-death designations, life insurance with a living beneficiary, certain retirement accounts with designated beneficiaries, property held with survivorship rights, and real estate subject to an effective beneficiary deed.

But every estate is different. One of the first things we do when evaluating a potential Arizona probate is identify the assets and determine how each one is titled.

Sometimes a family comes to us expecting a substantial probate and discovers that most or all of the property can pass outside probate. Other times, a family assumes probate is unnecessary and later discovers an asset that cannot be transferred without additional legal action.

My Parent Died Owning a House in Arizona. Do I Need Probate?

Maybe. Owning Arizona real estate does not automatically mean a full probate will be required.

We first need to determine how the property is titled, whether there is a surviving joint owner with survivorship rights, whether the property is owned by a trust, whether a beneficiary deed was recorded, what the deceased person's interest in the property was, and whether the estate qualifies for Arizona's small-estate procedure.

If none of the available non-probate transfer methods applies, a probate proceeding may be necessary to establish authority to administer and transfer the property.

This question comes up frequently when adult children discover that a parent's house is still titled solely in the parent's name. Before assuming that you need a full probate—or that you do not—it is worth having the deed and the rest of the estate reviewed.

Can a Small Estate Avoid Probate in Arizona?

Arizona law provides simplified affidavit procedures for certain qualifying small estates.

Under current Arizona law, personal property may potentially be collected by affidavit if the value of the qualifying personal property in the estate, after liens and encumbrances, does not exceed $200,000 and the other statutory requirements are satisfied. The personal-property affidavit procedure generally cannot be used until at least 30 days after death.

Arizona also provides an affidavit procedure for certain real property when the qualifying Arizona real property does not exceed $300,000, after applicable liens and encumbrances, and the other statutory requirements are met. The real-property procedure generally requires waiting at least six months after death and satisfying additional statutory requirements.

The dollar amount alone does not determine whether an estate qualifies. That is why it is important to evaluate the entire estate before deciding that a small-estate affidavit can replace probate.

What Happens If There Is No Will?

Dying without a will is called dying intestate. It does not mean that the State of Arizona automatically receives the estate.

Instead, Arizona's intestacy laws determine who is entitled to inherit. Depending on the person's family circumstances, that could involve a surviving spouse, children, parents, siblings, or more distant relatives.

Probate may still be required to determine the proper heirs, appoint a personal representative, administer the estate, address valid debts and expenses, and distribute the remaining property.

The absence of a will can also create disagreements when family members have different understandings about what the deceased person intended.

Who Handles an Arizona Probate?

The person appointed by the court to administer a deceased person's estate is generally called the personal representative. People sometimes use the terms executor or administrator. Arizona statutes generally use the term personal representative.

The personal representative's responsibilities can include identifying and protecting estate assets, dealing with creditors, handling required notices and filings, addressing taxes and expenses, selling property when appropriate, maintaining records, and ultimately distributing the estate to the people legally entitled to receive it.

Serving as personal representative is a legal responsibility, not simply a family title.

Do I Need an Attorney for Probate in Arizona?

Not every probate situation requires the same amount of legal assistance.

Arizona courts provide forms and self-help resources for people handling certain probate matters themselves.

But probate can become more complicated when the estate includes real property, there are questions about the validity or meaning of a will, family members disagree, creditors are involved, assets are difficult to identify, someone challenges the personal representative, or the estate involves both probate and trust issues.

An attorney can also help determine whether opening probate is necessary in the first place. Sometimes the most valuable advice comes before anything is filed with the court.

How Long Do I Have to Start Probate in Arizona?

Waiting too long can create serious problems.

Arizona law generally provides a two-year outside limit after the decedent's death for commencing many informal or formal probate, testacy, or appointment proceedings, although the statute contains important exceptions and special rules.

Do not assume that an old estate is impossible to address—or that you have unlimited time. If a significant amount of time has passed since the death, the particular circumstances should be reviewed promptly.

What Should I Do First After Someone Dies?

You do not need to understand the entire Arizona probate process before asking for help.

Start by gathering whatever information you have. That might include the original will, trust documents, death certificate, deed to any Arizona real estate, recent bank or investment statements, vehicle information, beneficiary information, and any bills or creditor notices you have received.

Then determine how the major assets are titled. You may discover that probate is unnecessary, that a small-estate procedure is available, or that a probate proceeding should be opened.

The important thing is to determine the appropriate procedure before transferring, selling, or distributing property.

Not Sure Whether You Need Probate?

You do not have to figure this out on your own before contacting an attorney.

If a family member has died and you are unsure whether probate is necessary, The Law Offices of Jeffrey D. Lynch can review the situation and help you determine what should happen next.

Tell us what happened, what property the person owned, whether you have located a will or trust, and what questions you are facing.

This page provides general information about Arizona law and is not legal advice. Whether probate or another procedure is appropriate depends on the facts of the particular estate.