Newsletter

August, 2015

Myth Busting about Wills, Trusts, and Probate in Arizona (Part 1)

Myth #1. Probate is something to be avoided at all costs. The truth is that a decedent's estate can be probated in Arizona for under $400 in costs and many estates are probated without the need of an attorney. The self-service center for the Superior Court in Maricopa County can be found at any of the Superior Court locations or at http://www.superiorcourt.maricopa.gov/SuperiorCourt/Self-ServiceCenter/Index.asp. If looking for the forms and instructions from the website, click on "Probate" (which includes guardianships, conservatorships, and decedent's estates) and then "Informal Probate," which specifically refers to the administration of decedent's estates. The estate is testate if the decedent left a Will or intestate if the decedent left no Will. Informal Testate Probate is available if the decedent left a properly executed Will and the original is available and a Personal Representative (PR) named in the Will is able and willing to act. Informal Intestate Probate is available if all of the intestate heirs agree to the appointment of one of them as PR. For example, if the decedent was a widow or widower and left three children all of whom are living, the three can agree on the appointment of one of them as PR who would then administer the estate and divide the balance equally between the children under the laws of intestacy.

Myth #2. Probate can take a year or even two. Not so in most cases. Once appointed, the PR can administer simple estates in just over four months. I would call an estate simple if the only real property is an Arizona residence in saleable condition and a buyer can be found fairly quickly, the decedent had few debts, all accounts at banks or other financial institutions are easily identifiable and collectable, there are sufficient assets to administer the estate, and above all, the beneficiaries are getting along with each other and the PR. More complicated estates require longer to administer. Factors that lengthen the time of administration include real property in unsalable condition, real property outside the State, sticky creditor problems or tax problems, especially if decedent neglected to file returns in prior years due to illness, declining health, or a decline in mental status, disputes between the beneficiaries or related to the PR's administration of the estate, which can be exacerbated if the parties are using the administration of the deceased relative's estate as an excuse to dredge up unresolved insults and injuries. In many of those cases, a probate attorney should be sought to represent the PR.

Having said all of the above, then why do a living trust? There are good reasons to establish a living trust, and I will discuss those in Part 2.