Do I Need A Probate Lawyer?
Dealing with a family member’s death is incredibly stressful. Having to go through the probate process with no guidance can make matters even worse. The first thing to determine is whether you need to do a probate at all.
Related article: 10 Common Questions about the Probate Process in Arizona
Does the Estate Qualify for Arizona’s Small Estate Procedures?
For certain small estates, family members are able to avoid the probate process entirely by filling out a simple affidavit.
The primary situations where these small estate procedures come into play is when an estate is worth less than $75,000 or when the estate consists primarily of Arizona-based real estate, which is worth less than $100,000.
If the estate’s personal property is worth less than $75,000, you will need to wait 30 days to file the affidavit. If real property value is worth less than $100,000, you will need to wait at least six months to file, be sure all funeral expenses and unsecured debts are paid, and be sure no estate taxes will be due.
If the estate qualifies for this procedure under Arizona probate law, filling out the legal form can be done without working with an attorney.
HOWEVER, when reviewing the estate’s assets, you should also conduct a full accounting of debts, including funeral costs. If there are not enough assets to pay off the debts, you should seek further advice. Under state laws, creditors have the right to be paid first, even before heirs.
How Is the Property in the Estate Held?
Certain property may not be subject to the probate process, depending on how it is held. Real property, like the family home, may be held as joint tenants with right of survivorship or as community property with right of survivorship. Survivorship means that the asset rolls to the person still living when the other person dies.
Similarly, many bank accounts are payable-on-death, meaning that they automatically transfer to a designated beneficiary upon the death of the account holder. Retirement plans, life insurance policies, and securities and other investments may have similar language and therefore would not be subject to probate procedures.
Any property held in a trust will not need to go through probate at all, because it does not belong to the person who passed away. Instead, it belongs to the trust and no ownership transfer is necessary. Having assets into a trust means that they remain private and that they will not be subject to any court proceedings.
How Is Your Family Coping?
Finally, you should take note of how your family is processing your loved one’s death. Even if the estate is relatively simple, there are very few debts, and the property can be easily transferred, there can be a lot of feelings surrounding death.
For some people, the stress is too much and it is significantly less painful to have an attorney complete the legal documents for them. Others may feel certain amounts of anger and resentment when the estate is divided, and may choose to contest the will. If this is the case, you may decide to seek legal help to work through Arizona’s formal legal process in probate court. Will contests can get messy and tear families apart. Working with a professional can help keep the peace and ensure that everyone is on speaking terms when all is said and done.
This article is for informational purposes only. It does not provide legal advice, nor does it create attorney-client privilege. If you find yourself lost in the middle of the probate process, or have any questions about estate planning, please contact me today for legal assistance. I’m here to help.