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What does the word “probate” really mean?

What is Probate?

The word probate comes from the Latin word “provar” which means to prove. Historically, probate was the process of “proving” that a person’s will was authentic after he or she (defined by the Arizona Probate Code as the “decedent”) passed away.

Today, the word probate has a much broader meaning to describe the entire court process of handling the distribution of the decedent’s estate. It not only includes determining the validity of the will, but it also includes appointing a personal representative (Arizona’s defined term for executor) to administer the will, determining who will inherit the assets if there is no will, and paying creditor’s claims and estate expenses.

When is Probate Required?

Generally speaking, assets in the decedent’s name alone, with no joint tenancy and no beneficiary designation, must go through the probate process to determine who is entitled to receive them. These types of assets are often called “probate” assets. There are several other kinds of assets discussed below that are not subject to the probate process, and these types of assets are called “non-probate” assets.

In Arizona, a probate is required if the probate assets in the decedent’s estate are worth more than $75,000 (for personal property items other than real estate) or more than $100,000 (for real estate). If a probate is required for such assets, then certain paperwork will need to be filed with the court to determine the validity of the will (if there is one), to appoint a personal representative, and to determine who will receive the distributions from the estate.

How Can I Avoid a Probate for Small Estates?

In Arizona (please note that other states may have different limits) an estate with personal property assets (i.e., anything other than real estate) worth less than $75,000 can be generally distributed by a simple affidavit.  In addition, real estate worth less than $100,000 (taking into account all mortgages and other liens on the real estate) can be distributed through the use of an affidavit in most cases.

Here are four different examples:

1) If a decedent died with a will that leaves everything to his only son, with an estate consisting of a bank account worth $10,000 and a CD worth 25,000 (for a total of $35,000), the decedent’s family would be able to use this affidavit process to distribute these assets to the son, the rightful owner, after the decedent’s death.

2) Similarly, if a decedent died without a will and with no spouse and one daughter, with the estate consisting of a home worth $200,000, along with a $120,000 mortgage (making the net value of the home $80,000), the decedent’s family would be able to use the affidavit process to distribute this home to the daughter, the rightful owner, after the decedent’s death. Of course, the daughter in this case would also be responsible for paying the mortgage.

3) If the decedent died owning a $35,000 bank account and a $50,000 CD (for a total of $85,000) or a home with a net value of $120,000, then the decedent’s family would not be able to use the affidavit process to distribute these assets after the decedent’s death.

4) If the decedent died with a will leaving everything equally to his eight children, with the estate consisting of an investment account worth $20,000 and a bank account worth $30,000 (for a total of $50,000), then the decedent’s family may be able to use the affidavit process; however, this process may be more cumbersome and more costly due to the number of children than simply opening a probate with the court to administer this estate.  With multiple beneficiaries, several factors need to be addressed to determine the most cost-effective strategy for the decedent’s family.

Are There Any Assets That Are Not Subject to a Probate?

Several kinds of assets are not subject to the probate process in Arizona because they pass to the recipient by operation of law:

  • Joint tenancy assets (real property, bank accounts, stock, etc.)
  • Community property with right of survivorship assets (real property, bank accounts, stock, etc.)
  • Insurance policies with proper beneficiary designations
  • 401(k)’s, IRA’s, and other retirement plans with proper beneficiary designations
  • Annuities with proper beneficiary designations
  • Bank accounts or investment accounts with a payable-on-death (“P.O.D.”) or transfer-on-death (“T.O.D.”) designations
  • Assets held in a trust

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John EvenOur firm has helped families just like yours handle a wide variety of estate planning, probate, and trust administration issues.  In particular, we have several years of experience handling all different kinds of estate planning, probate, trust administration, guardianship, and conservatorship matters.  When families are not getting along, we can also help you to handle any disputes and litigation related to wills, trusts, guardianships, or conservatorships as well.  Please give me a call, so that I can help you work through these difficult issues with confidence.

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