PROBATE

A loved one has died and you do not know what to do next.  The loved one either left you in charge of his or her affairs or he or she never made a plan. What do you do first?  What do you do next?

You may have heard the words Executor, Personal Representative, Will, here or there, but you may not be sure what they mean. We can explain them and answer your questions.  At GoodmanLaw_(sm) you may find a probate lawyer who will answer your questions,  guide you through the process and help you deal with the things life has sent you.

 To arrange a Probate consultation, call: (928) 445-3230 Probate Attorney Prescott

Use the checklist, below, to prepare for a consultation about Arizona Probate:

• Decedent’s date of death
• Decedent’s full legal name
• Decedent’s place of death
• Decedent’s usual residence at time of death
• General description of assets owned by decedent
• General description of debts owed by decedent
• Identity of person named in Will as the personal representative (executor)
• Location of any safe deposit box owned by decedent
• Location of decedent’s bank accounts
• Location of each parcel of real estate owned by decedent
• Location of instructions, if any, concerning funeral arrangements
• Name of decedent’s spouse
• Names of decedent’s children
• Location of original Last Will & Testament
• Location of any life insurance policies on decedent
• Estimated value of all assets owned by decedent
• Estimated amount of all debts owed by decedent

Use this form to collect the information needed for an Arizona Probate.

We help people with Arizona probate issues such as obtaining “letters” dealing with a beneficiary, determining who should be the executor (personal representative), and looking for non-probate methods of transferring title to assets.  For probate attorneys in Prescott, AZ, or assistance in any Arizona county, call us at (928) 445-3230.

What is Probate?

Originally the term “probate” meant “to prove the Will,” but the term has grown to include the administration of the decedent’s estate. There are several ways to proceed in handling a given estate. Essentially an estate may be handled either (1) as a single “supervised” administration or (2) as a series of separate proceedings which may be either “formal” or “informal.” Supervised administration is reserved for complex estates. Informal proceedings are used to handle uncontested matters. Formal proceedings are available if there is a dispute or if someone wants a final court adjudication to forestall later disagreements.

Most probate proceedings are informal. Certain forms must be filed with the court, but the court is not involved in collecting, managing, valuing, or distributing the assets; and, once appointed, the personal representative (the executor or executrix is called “personal representative” in Arizona) can do virtually anything with the property which the decedent could have done.

When is the “Reading of the Will?”

Reading of the Will

Contrary to the images portrayed on television and the movies, in Arizona, there is usually no formal “Reading of the Will.”  Once a Will is filed for probate it becomes a public record and is available for inspection by anyone.  Persons interested in the Estate are entitled to receive a copy of the Will, and they usually read it in the privacy of their own homes.

Why is Probate Sometimes Necessary?

The primary purpose and perhaps the only purpose, of most probates, is to enable the beneficiary of property to show that he/she is the legal owner thereof so that he/she can deal with it as he/she sees fit. Title to assets such as real estate and stocks and bonds usually must be probated to change the title from the decedent to the beneficiary. The probate court gives the personal representative the power to change titles.

Remember, nothing in the law says that when a person dies his/her estate must be probated. The purpose of probate (again, in the usual, uncomplicated estate) is to “change the title” (ownership). Remembering that will help you understand what has to be probated, and why, and how to avoid probate.

How Much Does Probate Cost?

The cost of conducting a probate proceeding can range from a few hundred dollars to thousands of dollars, depending upon the size of the estate, the type of assets involved in the estate and the nature of the probate proceeding (formal, informal, supervised or unsupervised). Generally, the more assets and the more complicated they are, or the more people involved in the process, the more it costs. It is usually impossible at beginning of any probate proceeding to tell exactly how much time and effort will be required to properly bring that proceeding to a close.

Fees in probate administration can be set in a number of ways.  Some Arizona lawyers charge a percentage of the size of the estate to handle a probate matter, while other lawyers either bill by the hour or charge a flat fee.  Fees for probate proceedings in Arizona are not regulated (except that they must be “reasonable”), they are subject to negotiation, and they may vary depending upon the location or size of the law firm involved.

In many cases, our fee for ordinary legal services in the administration of an uncontested, informal probate estate ranges from a few hundred dollars to a few percent of the value of the estate, plus out-of-pocket costs. Typical costs include court filing fees, telephone calls, postage and copying costs, publishing notices of probate and other necessary expenses. This estimate assumes that no litigation is involved.  An advance for costs is usually required.

Fees for a formal probate or a supervised proceeding will usually be significantly greater than the fees involved in an uncontested informal probate.

In some states, like California, probate fees are set by statute.  For example, California Probate Code Section 10810 states:

(a) Subject to the provisions of this part, for ordinary services the attorney for the personal representative shall receive compensation based on the value of the estate accounted for by the personal representative, as follows: (1) Four percent on the first fifteen thousand dollars ($15,000). (2) Three percent on the next eighty-five thousand dollars ($85,000). (3) Two percent of the next nine hundred thousand dollars ($900,000). (4) One percent of the next nine million dollars ($9,000,000). (5) One-half of 1 percent of the next fifteen million dollars ($15,000,000). (6) For all above twenty-five million dollars ($25,000,000), a reasonable amount to be determined by the court. (b) For the purposes of this section, the value of the estate accounted for by the personal representative is the total amount of the appraisal of property in the inventory, plus gains over the appraisal value on sales, plus receipts, less losses from the appraisal value on sales, without reference to encumbrances or other obligations on estate property.

The Florida statutes, at Section 733.6171(3), outline what is presumed to be reasonable compensation:

$1,500.00 for estates of less than $40,000.00;
$2,250.00 for estates of less than $70,000.00;
$3,000.00 for estates of less than $100,000.00;
Three (3) percent of the value of the estate from $100,000.00 to $1 million;
Two and one-half (2 1/2) percent of the estate value from $1 million to $3 million.

Pennsylvania does not set the fees by statute.  For an example of the guidelines used by some Pennsylvania courts to determine the reasonableness of fees, click here.

The above “reasonable fees” are for ordinary legal services only and do not include such things as will contests, contested claims, tax advice and ancillary administration.

Estate Tax Waiver

In Arizona, it used to be necessary to obtain an “Estate Tax Waiver” from the Arizona Department of Revenue in order to clear title to real property, including joint tenancy property. An Estate Tax Waiver is obtained by preparing a Report of Personal Representative of Decedent and supplying the Department of Revenue with information about the decedent’s estate. Once a waiver is obtained, it may have to be recorded in each county where the decedent owned real property.

Alternatives to Probate

There are a number of alternatives to probate, even after a person has died. Depending upon the size of the estate, the manner in which title was held, and the type of asset involved, it may be possible to transfer title without the need for a probate. A competent attorney can advise you about when probate is required and when it is not necessary.

What About Joint Tenancy?

Although joint tenancy property does not require a probate, some work may be necessary to clear the title. For example, if the land is held in joint tenancy, an Estate Tax Waiver used to be necessary and recording the death certificate is always required.

Probate Allowances

Under Arizona law, the widow and children of a person who dies (called a decedent) while domiciled in Arizona have a right to certain “allowances” from the estate of the decedent.  There are several allowances: exempt property; homestead; and, the family allowance.

Homestead Allowance

A decedent’s surviving spouse is entitled to a homestead allowance of eighteen thousand dollars ($18,000.00).  The homestead allowance should not be confused with the homestead exemption, which is explained elsewhere.  If there is no surviving spouse, each minor child and each dependent child is entitled to a homestead allowance of eighteen thousand dollars ($18,000.00) divided by the number of minor and dependent children.

The homestead allowance is exempt from and has priority over all claims against the estate except expenses of administration.  The homestead allowance is chargeable against any benefit or share that passes to the surviving spouse or minor or dependent child by the decedent’s will, by non-probate transfer or by intestate succession.

Exempt Property

In addition to the homestead allowance, the decedent’s surviving spouse is entitled from the estate to a value that is not more than seven thousand dollars ($7,000.00) in excess of any security interests in that estate in the following:

Household furniture

Automobiles

Furnishings

Appliances

Personal effects

If there is no surviving spouse, each minor child and each dependent child are entitled jointly to the same value as a surviving spouse. Rights to exempt property and assets needed to make up a deficiency of exempt property have a priority over all claims against the estate except expenses of administration.

Family Allowance

The decedent’s surviving spouse and minor children whom the decedent was obligated to support and children who were, in fact, being supported by the decedent are entitled to a reasonable allowance in money out of the estate for their maintenance during the period of administration.  This allowance shall not continue for more than one year if the estate is inadequate to discharge allowed claims.  The allowance may be paid as a lump sum or in periodic installments.

The family allowance is exempt from and has priority over all claims except expenses of administration and except the homestead allowance.  The family allowance is chargeable against any benefit or share that passes to the surviving spouse or minor or dependent child by the decedent’s will, by non-probate transfer or by intestate succession.

Probate Fees

We represent beneficiaries and personal representatives in Arizona probate matters.

Personal Representative

In many cases, our fee for ordinary legal services representing the personal representative in the administration of an uncontested, informal probate estate ranges from a few hundred dollars to a few percent of the value of the estate, plus out-of-pocket costs. Typical costs include court filing fees, telephone calls, postage and copying costs, publishing notices of probate and other necessary expenses. This estimate assumes that no litigation is involved.  An advance for costs is usually required.

Fees for a formal probate or a supervised proceeding will usually be significantly greater than the fees involved in an uncontested informal probate.

Beneficiary

Our usual fee for representing a beneficiary depends upon the amount of time required and whether the representation involves negotiation, litigation, or other services.

Probate Forms 

Affidavit: Collection of Personal Property

California Declaration: Collection of Personal Property Without Probate

Affidavit: Terminate Community Property with Right of Survivorship
Affidavit: Terminate Joint Tenancy
Affidavit: Succession to Real Property
Affidavit: Transfer Maricopa personal and/or real property
Affidavit: Transfer Mohave real property  Alternate
Applicable Federal Rates or Applicable Federal Rates (Internal Revenue Code interest rates)
Arizona Report of Personal Representative of Decedent (Form 74)
Estate Planning Checklist
Notice of Assumption of Fiduciary Duty Form
Probate questionnaire & information
Questionnaire for Affidavit for Transfer of Real Property
Statement Directing Issuance of Certified Copy of Affidavit of Succession to Real Property
Tax Clearance Form
Things to do Upon the Death of a Loved One
W-9 Form

For probate assistance in any Arizona county, call us at (928) 445-3230.