Does a Will Avoid Probate in Arizona?

What Does a Will Actually Do?

A will is essentially a set of legally enforceable instructions concerning property and estate administration after death.

Among other things, a will can identify who should receive property and nominate the person who should serve as personal representative.

But the will does not necessarily control everything the deceased person owned.

Some property passes according to the will.

Some property may pass outside the will entirely.

The important question after someone dies is therefore not simply: “Did Dad have a will?”

It is: “How was each asset legally supposed to transfer when Dad died?”

Why Doesn't a Will Avoid Probate?

Consider a simple example.

Dad owns a house in Arizona.

The deed lists only Dad as the owner.

Dad signs a will saying: “I leave my house to my daughter.”

Dad dies.

The will tells us who Dad intended to receive the house.

But Dad's name is still on the deed.

The will does not automatically remove Dad's name from the title and replace it with his daughter's name.

Some legal method is still needed to transfer Dad's ownership interest.

Depending on the value of the property and the other circumstances of the estate, that might involve a probate proceeding or, if all requirements are satisfied, Arizona's small-estate real-property affidavit procedure.

The will tells us who should receive the property. It does not necessarily provide the mechanism that transfers title.

If the Will Says I Get the House, Do I Own It Immediately?

Not necessarily in the practical sense people usually mean.

Being named as the beneficiary of a house in a will does not mean you can immediately sign a deed as the owner, list the property for sale, or simply put the house into your own name.

The estate may first need to be administered.

There may be a mortgage.

There may be creditors.

There may be expenses associated with the property.

There may be other provisions in the will.

And someone may need legal authority to act on behalf of the estate.

The will establishes important rights, but those rights still have to be implemented through the appropriate legal process.

What Property Does a Will Control?

Generally, a will controls property that becomes part of the deceased person's probate estate and is disposed of by the will.

For example, suppose Dad has a bank account solely in his name with no beneficiary, a vehicle solely in his name, and a house solely in his name with no beneficiary deed, trust ownership, or surviving joint owner.

Those assets may become probate assets.

Dad's will can tell us who should ultimately receive them.

But probate or another legally authorized transfer procedure may still be necessary.

What Property Can Pass Outside the Will?

Many assets can pass at death without being controlled by the will.

Examples may include life insurance with a valid beneficiary; retirement accounts with valid beneficiary designations; payable-on-death bank accounts; transfer-on-death investment accounts; certain jointly owned property with survivorship rights; property held in a properly funded trust; and Arizona real estate subject to an effective beneficiary deed.

These assets generally pass according to the legal arrangement governing that particular asset.

That means the beneficiary designation, deed, trust, or ownership arrangement can be more important than what the will says about the same property.

What If My Will Says One Thing but the Beneficiary Designation Says Something Else?

This is where families are sometimes surprised.

Suppose Dad's will says: “I leave everything equally to my three children.”

But Dad has a $300,000 life-insurance policy naming only one child as beneficiary.

The insurance proceeds generally pass according to the beneficiary designation—not according to the equal division stated in the will.

Likewise, if Dad has a bank account with a valid payable-on-death beneficiary, the account may pass to that beneficiary rather than under the will.

A will generally does not override a valid beneficiary designation merely because the will was signed later or says that everything should be divided differently.

That is why estate administration requires looking at the ownership and beneficiary arrangement for each asset, not merely reading the will.

What If Dad's Will Says “I Leave Everything to My Children”?

The phrase “everything” can be misleading.

Dad may intend to leave everything to his children, but the will generally controls only the property that is subject to the will.

Suppose Dad's will leaves everything equally to his three children.

But Dad also owns a retirement account naming his second wife as beneficiary, a joint bank account with rights of survivorship, and a house held in his revocable trust.

Those assets may pass outside the will.

The property actually distributed under the will could be much smaller than the total amount Dad owned during his lifetime.

Does Joint Ownership Avoid Probate?

Sometimes.

But the exact form of ownership matters.

People often tell us: “Both names are on the property, so it doesn't need probate.”

That conclusion can be premature.

Some forms of joint ownership include survivorship rights, allowing the deceased owner's interest to pass to the surviving owner.

Other ownership arrangements may not produce the same result.

The deed, account agreement, or other ownership document needs to be reviewed.

The presence of two names by itself does not tell us everything we need to know.

Does an Arizona Beneficiary Deed Avoid Probate?

An Arizona beneficiary deed can be a very effective probate-avoidance tool for real estate when it was properly executed and recorded before the owner's death and remains effective.

The owner keeps the property during life.

The beneficiary deed identifies who should receive the owner's interest at death.

When the owner dies, the beneficiary may be able to establish the transfer without opening probate merely to move title to that property.

But the beneficiary deed must actually exist and satisfy Arizona's requirements.

A statement in a will saying: “My son gets my house” is not the same thing as a recorded beneficiary deed.

What If Dad Signed a Beneficiary Deed but Never Recorded It?

That can be a major problem.

Arizona law requires a beneficiary deed to be recorded before the owner's death in the county where the real property is located.

If Dad signed a beneficiary deed and left it in his desk but never recorded it before he died, the document may not accomplish the intended nonprobate transfer.

This is a good example of why estate planning involves more than signing documents.

The documents must also be properly implemented.

Does a Trust Avoid Probate?

A properly created and properly funded revocable trust can allow trust property to be administered and distributed without probate merely to transfer that trust property.

But the words “properly funded” are critical.

Creating a trust does not magically place every asset into it.

Suppose Mom signs a revocable trust but never transfers her Arizona house into the trust.

The deed still lists Mom individually as owner.

Mom dies.

The family may discover that the trust exists but the house was never actually transferred to it.

Probate—or another available transfer procedure—may still be required for the house.

This is one of the most important differences between simply having a trust document and having a funded estate plan.

What Is a Pour-Over Will?

Many people with revocable trusts also have what is commonly called a pour-over will.

A pour-over will generally directs probate property remaining in the deceased person's individual name into the trust after death.

But this creates an important point:

A pour-over will does not necessarily avoid probate for assets left outside the trust.

If an asset remained individually titled and has no other nonprobate transfer mechanism, probate may still be required to move that asset into the trust.

The pour-over will tells us where the property should ultimately go.

It does not necessarily eliminate the probate process needed to get it there.

If I Am Named Personal Representative in the Will, Can I Start Acting Immediately?

Generally, no.

This is another common misunderstanding.

A will may nominate you to serve as personal representative.

But being named in the will does not, by itself, give you all of the legal authority of an appointed Arizona personal representative.

When probate administration is required, the appropriate court process generally must occur and the personal representative must be appointed.

Once appointed and qualified, the personal representative receives the legal authority associated with that office.

Before appointment, you should be cautious about signing contracts, selling estate property, accessing accounts, or representing that you have authority you do not yet possess.

Can I Use Dad's Will to Access His Bank Account?

Usually, showing a bank a will is not the same thing as establishing legal authority to collect a probate account.

The bank may require documentation establishing the legal right to receive or control the funds.

Depending on the circumstances, that could involve letters issued to an appointed personal representative or a qualifying Arizona small-estate affidavit.

If the account has a valid payable-on-death beneficiary, the beneficiary may instead be able to claim it through the bank's beneficiary process.

Again, the answer depends on how the account was titled.

Does Having a Will Make Probate Easier?

It often can.

A properly drafted will may answer important questions that otherwise have to be resolved under Arizona's default intestacy statutes.

The will may tell us who should inherit the probate estate, who the deceased person wanted to serve as personal representative, and how certain property should be distributed.

That can reduce uncertainty.

But a will cannot guarantee that family members will agree, that no creditor issues will arise, or that the estate will not require court involvement.

A will can make probate more orderly without eliminating probate altogether.

What Happens If There Is No Will?

If there is no valid will, Arizona's intestacy laws determine who inherits the intestate probate estate.

That does not mean the State of Arizona automatically receives everything.

The statutes establish which relatives inherit and in what shares.

The absence of a will also does not mean nobody can be appointed to administer the estate.

Arizona law establishes priority rules for appointment of a personal representative when there is no controlling nomination in a will.

Can a Small Estate Affidavit Be Used Even If There Is a Will?

Potentially.

Having a will does not automatically require a traditional probate.

If the estate satisfies Arizona's small-estate requirements, an affidavit procedure may still be available.

For example, Dad might have a will leaving his bank account to his daughter, but the total probate personal property may be within Arizona's current small-estate limit.

If the statutory requirements are satisfied, the daughter may be able to use the personal-property affidavit procedure rather than opening a traditional probate merely because a will exists.

The important question is not whether there is a will.

It is whether the estate satisfies the requirements for the transfer procedure being used.

How Do I Know Whether Probate Is Necessary If There Is a Will?

Start with the assets.

Make a list of everything the person owned and ask how each item transfers at death.

For each asset, determine: Was it owned by a trust? Is there a beneficiary designation? Is there a payable-on-death or transfer-on-death designation? Is there a surviving joint owner with applicable survivorship rights? Is there an effective beneficiary deed? Is the asset still titled solely in the deceased person's name?

Then look at the value and type of the assets that remain.

Some estates will require probate.

Some may qualify for Arizona's small-estate procedures.

Others may have been structured so that little or no probate property remains.

Dad Had a Will. What Should I Do Next?

First, locate the original will if possible.

Then gather the death certificate; deeds for Arizona real estate; bank and investment statements; retirement-account information; life-insurance information; vehicle titles; trust documents; beneficiary deeds; and any beneficiary-designation information you can locate.

Do not assume the will answers every question.

The goal is to match each asset with the legal method by which it transfers.

A Will Does Not Automatically Avoid Probate

A will can be an extremely important estate-planning document.

But its primary function is not necessarily to avoid probate.

If your parent or another family member died with a will, the next question should be: “What property is still in the deceased person's name, and how does that property legally transfer?”

That is usually what tells us whether probate is necessary.

The Law Offices of Jeffrey D. Lynch can review the will, the assets, beneficiary designations, real-estate title, trust documents, and other available information to determine what needs to happen next.

You may need probate.

You may qualify for a small-estate procedure.

Or you may discover that the estate plan already provides a nonprobate method of transferring most or all of the property.

This page provides general information about Arizona law and is not legal advice. Whether probate is required depends on ownership, title, beneficiary designations, trusts, the value and type of property, the terms and validity of the will, and other circumstances.