Is Probate Always Necessary For an Arizona Estate?
In Arizona, as in other states, probate is a court-supervised process for settling and distributing an estate after a person passes away. A common misconception is that probate is necessary for every estate, which is not the case. Some assets and some estates are not required to go through the probate process. In fact, with help from an estate planning attorney, you can take steps during your lifetime to ensure that your estate avoids the probate process entirely.
What Is Probate?
The probate process is a complex, detailed procedure established in Arizona statutes. After a person dies, the state laws may require their estate to go through one of several different types of probate, depending on the nature and circumstances of the estate. When probate is required, the process is usually handled by a personal representative authorized by the court to settle and distribute the estate. In most cases, the personal representative retains a probate lawyer to assist with the process, because of the complicated process and the significant fiduciary duties of the personal representative.
Some estates must go through probate, but other estates can be settled and distributed without the need to go through the cumbersome, expensive, and public probate process.
Determining Whether Probate Is Necessary
When a family loses a loved one, grieving the loss is the most important immediate concern for everyone. The prospect of probate and other legal requirements that apply to an estate can be overwhelming and intimidating, which is a primary reason to enlist help from a probate and estate administration attorney. A knowledgeable lawyer helps not only with issues relating to probate, but also provides experienced guidance through all the legal concerns, questions, and issues that arise after a person dies.
One of the primary issues that a probate and estate administration lawyer addresses is what process is legally required to settle and distribute a specific estate under the applicable Arizona laws. The attorney makes that determination after collecting all the necessary information about the decedent’s assets and property and locating any estate planning documents — such as a will or trust — that affect settlement of the estate.
Probate and Non-Probate Property
Property in a decedent’s estate is characterized as either probate property or non-probate property. If an estate includes only non-probate property and does not have any probate property, then it does not have to go through the probate process.
Non-probate property generally includes:
- Assets transferred into a living trust by the decedent during their lifetime
- Property or assets owned in joint tenancy and community property with a right of survivorship
- Accounts with named beneficiaries (other than the estate), such as life insurance policies, Individual Retirement Accounts (IRAs) and other retirement accounts, and annuities
- Pay-On-Death (POD) and Transfer-On-Death (TOD) assets like bank accounts, securities, and real estate for which there is a beneficiary deed
All of these types of non-probate property transfer after death without going through the probate process.
Probate property includes virtually any other solely-owned property that remains in the decedent’s estate on their death. When a person dies without a will or estate plan, property inherited under the state laws of intestacy generally must go through probate before it is distributed. But even if there is a will or living trust, an estate may contain probate property. For example, if the deceased person solely owned property that was not transferred into an existing living trust, then that property must go through probate before it can be distributed.
Avoiding the Probate Process
Probate is a process that takes time and costs money, including expenses and fees, as well as compensation for the personal representative. It also makes the financial details of a decedent’s estate publicly available. An estate that goes through probate also takes longer to settle than one that does not go through the probate process.
A carefully structured estate plan can avoid the probate process entirely. However, it is essential to get help from an experienced estate planning attorney to ensure that your estate plan is effective in avoiding probate, while achieving your other estate planning goals and needs. You should never attempt to make your own estate plan or try to avoid probate of your estate without assistance from a knowledgeable lawyer. The do-it-yourself (DIY) approach has substantial risks and can create significant legal problems that may not be discovered until it is too late to fix them.
Schedule a Free Consultation With an East Valley Probate and Estate Planning Attorney
At Peterson Law Offices, Arizona probate and estate planning are core components of our practice. If you need help with probate and estate administration concerns, or if you would like to create an estate plan to avoid probate or accomplish other important goals, we welcome you to schedule a free consultation with us.
We provide top-quality services at affordable prices and serve clients throughout the East Valley, including Queen Creek, San Tan Valley, Gilbert, Mesa, and Chandler. Schedule your free initial consultation by calling 480-878-5998 or using our online contact form.
