In our probate and estate planning practice at Peterson Law Offices, PLLC, clients often ask whether every Arizona estate must go through probate. The simple answer is “no,” every estate does not go through probate. But Arizona law requires many estates to go through a probate process. And — to make an important distinction — every estate does go through estate administration, which is different from probate.
Whether an estate goes through probate depends largely on the decedent’s estate plan or lack of a plan (if the person died intestate without a Will). It also depends on the nature of the title to property in which the decedent had an interest.
People (including lawyers) often use the terms probate and estate administration interchangeably — but technically, they are not the same thing. (Adding to the confusion is the fact that probate is also referred to as probate administration.) Probate refers to a court-supervised (or, in Arizona in some cases, court registrar-supervised) process that is legally required for many estates.
In contrast, estate administration refers to the process that every estate goes through, even when probate is not necessary. Estate administration is the process of settling the estate of a decedent. Sometimes estate administration involves the probate process, but other times it does not.
The nature of property in an estate determines whether an estate must go through probate. Assets that go through the probate process are called probate assets. An estate may also have non-probate assets, which are assets that do not go through the probate process.
Property and assets that qualify as non-probate assets do not have to go through a probate process. Non-probate assets generally include:
When an individual creates an estate plan, avoiding probate often is one of the goals. That goal is accomplished by working with a knowledgeable estate planning attorney to ensure that all assets in the estate are non-probate assets.
It is only possible to avoid probate by properly structuring your estate while you are living and have the required mental capacity. An estate cannot be restructured to avoid probate after a person becomes incapacitated or dies.
Arizona has an additional exception to the probate process for small estates that meet specific requirements, even if there are probate assets in the estate. If the total value of personal property in the estate is less than $75,000 and the value of real estate is less than $100,000, an estate can be settled through an affidavit process, rather than going through probate.
If an Arizona estate has probate assets and does not qualify for the affidavit process, the estate must go through one of three different types of probate: informal probate, formal probate, or supervised probate. The type of process required for a specific estate depends entirely on the individual circumstances of the estate.
The court registrar handles the entire informal probate process. Most estates that go through probate can be processed through the informal probate process, including estates in which a decedent did not leave a Will. In most situations, the process goes smoothly, but it is detailed and usually takes six months to a year to complete.
Informal probate does require appointment of a personal representative for the estate. The personal representative is responsible for following all the necessary steps to complete probate and settle the estate in compliance with the complex statutory requirements. Typically, the personal representative retains an experienced estate planning attorney to handle the process to ensure full compliance with legal requirements.
Supervised probate involves direct court supervision of administration and monitoring of the decisions of the personal representative. It is used when informal probate is not sufficient to address issues that arise in the estate.
Formal probate involves direct court supervision of and participation in the probate process. It is more extensive than informal and supervised probate. Generally, formal probate is necessary if someone contests the validity of a will.
The only way to create a plan that will result in your estate avoiding the Arizona probate process is to talk with an experienced Arizona estate planning attorney. You should never attempt to circumvent probate on your own by using forms or a do-it-yourself (DIY) process. There are a multitude of ways that DIY estate planning can go wrong. Worst of all, errors or mistakes may not be discovered until it is too late to fix them — and your estate property may not end up in the hands of your intended beneficiaries.
At Peterson Law Offices, probate and estate planning are a core part of our practice. We provide top-quality services at affordable prices and can assist you in creating a new estate plan or help you revise an outdated plan.
We welcome inquiries from 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.
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