To arrange a Probate consultation, call: (928) 445-3230
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 attorney 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?”
The 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. Prescott Probate Attorney
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. Prescott Probate Attorney
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.
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 formerly was 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 was 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 was obtained, it had to be recorded in each county where the decedent owned real property. An Estate Tax Waiver is no longer necessary.
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.
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.
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.
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:
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.
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.
We represent beneficiaries and personal representatives in Arizona probate matters.
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.
Our usual fee for representing a beneficiary depends upon the amount of time required and whether the representation involves negotiation, litigation or other services.
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