fbpx
logo
Call Us : 623.551.5457
Menu ▼▲
  • Home
  • Firm Overview
    • Testimonials
  • Attorneys
    • Sam Crump
    • Nichole Oblinger
  • Practice Areas
    • Bankruptcy
      • Chapter 7
      • Chapter 13
      • Short Sales
      • Foreclosures
    • Business & Corporate Law
      • Disputes
      • Corporate Counseling
      • Business Formation
      • Contract Law
      • E-Commerce Law
      • Franchises
    • Civil Litigation
    • Family Law
      • Divorce
      • Child Support
      • Child Custody
      • Marriage
    • Real Estate Law
    • Probate & Estate
  • Resources
    • Articles
    • Blog
    • FAQs
      • Family Law
      • Search and Seizure
      • Foreclosure
      • Drunk Driving, DUI & DWI
      • Divorce Meditation
      • Arrests and Interrogations
      • Alimony
  • Contact

Probate & Estate Administration

Most, if not all of you have probably heard about probate. However, not many people truly understand what probate is, or why we even have probate. This article will highlight some basic information on the probate process.

What is Probate?

Probate is the legal process used to transfer assets that were owned by someone who is deceased. Many asse4ts, such as your home and car, have a title that needs to be transferred. If the owner is deceased they obviously can not sign the title. Probate is the court process used to appoint someone to sign title documents and transfer property on behalf of the deceased person.

What Occurs During Probate?

To open a probate, a person files an Application for Appointment as personal representative with the Court. That application requests that the Court: (i) accept the decedent’s original Will for probate (if there is a Will), and (ii) appoint a personal representative to administer the decedent’s estate. The prospective personal representative must also file other initial documents to start the probate process.

The Court will generally appoint the person named as personal representative in the Will as the decedent’s personal representative unless the person is not qualified, declines, is unable or is challenged by an interested party. The Court will usually appoint a personal representative without a formal hearing.

If the Probate Court is satisfied that all requirements have been met and all information has been supplied, it will open the probate and issue a document known as “Letters Testamentary” by which the Court appoints the personal representative of the estate. The personal representative may give copies of the Letters Testamentary to people and entities to show that a probate was opened and that the personal representative has the authority to act on behalf of the estate.

The executor then makes an inventory of the estate’s assets, locates creditors, pays bills, files tax returns, and manages the estate assets. When all of the duties of the executor are completed, but not earlier than four months after the probate is opened, another petition is filed with the Court asking that the estate be distributed to the devisees or heirs. If this petition is granted, the probate is completed by distributing the assets to the devisees or heirs and filing final tax returns.

What are Probate Assets?

Probate proceedings involve only assets commonly referred to as “probate assets.” Probate courts do not have jurisdiction over and cannot administer assets that are not probate assets. Probate assets include all real property and personal property, including intangible personal property:

  1. in which the decedent had an interest at the time of death, and
  2. that are not transferred by operation of law or by contract to a person or entity.

The decedent must have had an interest in the property at the time of death or the property is not a probate asset.

If I have a Small Estate is there a shorter Probate Process?

Yes. In Arizona probate may not be required to obtain property or change title to the decedent’s property. These circumstances are (i) the decedent’s employer owes wages, salary or other compensation to the decedent of less than $5,000 and the decedent’s spouse seeks the money, (ii) the value of the personal property of the estate less liens and encumbrances is less than $50,000, and (iii) the value of the real property of the estate located in Arizona less liens and encumbrances thereon is less than $75,000. This small estate probate exemption cannot be used until thirty days after the decedent’s death, except in the case of the spouse of a decent who seeks the deceased’s compensation.

What Happens to Creditors in Probate?
Under the normal probate process the personal representative will pay all of the decedent’s creditors from the assets of the estate. However, certain assets are exempt from creditor’s claims, that is you do not have to sell those assets to pay the creditors. In Arizona some of those exemptions are up to $18,000 in the decedent’s homestead; up to $70000 of Household furniture, Automobiles, Furnishings, Appliances, and Personal effects. The surviving spouse and children can also use a reasonable amount of the estate to support themselves during the administration of the estate for up to one year. The exemptions are provided by statute and prior to making any determinations on exemptions you should review the law or consult with an attorney.

Can I avoid Probate?

As the Probate court only has jurisdiction over probate assets, probate is not necessary if you do not own any probate assets at the time of your death. This can be partly accomplished by owning property jointly with rights of survivorship, or by using beneficiary designations on property. The most common way to avoid probate is to use a Living Trust to own your assets during your life. Contact our office to find out more.

Return to Articles

  • Recent Articles

    • An Overview of Chaper 13 Bankruptcy

    • Arbitration Basics

    • Arizona Landlord Tenant Law

    • Arrests and Interrogations FAQ

    • Bankruptcy Basics

    • Basics of Commercial Leases

    • Business Entities – Which one is right for your Business ?

    • Business Succession Planning

    • Buying a Business: What You need to know?

    • Car Accidents Caused by Negligence

  • Testimonials

    • "We have been using Anthem Law's services for many years. They have helped us purchase a company, create a living trust and create legal documents. Anthem Law has been a great resource for our legal needs and we will continue to use them in the future."

      Steve Cahow, Netech Global, LLC
    • "I highly recommend Anthem Law."

      Brack J
    • "Anthem Law has excellent attorneys. They're trustworthy, always reliable, and provide very enlightened and informative advice."

      Josh Dolin, Tempo Creative
    • "Anthem Law helped me through a difficult contract negotiation for my business. Their attention to detail was extremely important. It allowed me to make the correct decisions throughout the entire process. I have used them for various legal needs and found them to be thorough and professional."

      Tim Maki, Insurance Agent
    • "I am sincerely thankful, and grateful, for the guidance and support I received from Anthem Law as I went through the emotional stress and pain that comes with going through a divorce. They were so genuine and kind; their advice was both realistic and reassuring- a comfort when I thought I couldn't make it through this situation."

      Tammy H.
    • "I engaged the services of Anthem Law when my wife and I separated and filed for divorce. The firm handled the case with true professionalism and empathy for my situation. My wife and I reconciled; a result the attorneys were pleased to hear. Two years later my wife and I have again filed for divorce. I again engaged Anthem Law and have again experienced the professionalism and empathy of the firm. I would highly recommend Anthem Law for your legal needs."

      Donald H.
    • "Sam Crump is more than just our family's attorney, he is a trusted business advisor and friend. I could not recommend someone more than I do Sam."

      Mike O’Shaughnessy, Pres. – Guardian Pro
  • Contact Us

    Anthem Law

    42104 N. Venture Drive, Suite D126
    Anthem, Arizona 85086

    Phone: 623-551-5457
    Facsimile: 623-551-5458

Get Social
  • Home
  • Firm Overview
  • Attorneys
  • Practice Areas
  • Articles
  • Contact Us
Copyright © 2021 Anthem Law