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Probate is often confused with taxes but probate is not a tax. It is a court process and fees from the state are often only several hundred dollars. What exactly is probate and why do people sometimes choose to avoid probate?
Probate is the process of:
Submitting the will to the court for validation
Legally appointing a personal representative to manage the estate
Prepare and file an inventory of all assets and liabilities
Notify creditors regarding the decedent's debts
Pay any estate taxes
File final tax returns
Distribute the estate
Some assets avoid probate and some estate avoid probate. The following assets avoid probate:
1. Assets with designated beneficiaries who are still living (such as life insurance, retirement accounts, annuities and bank accounts with "payable upon death")
2. Assets held in a living trust
3. Assets held in joint tenancy with rights of survivorship
Probate typically lasts six months or more in Arizona. Creditors must be given four months of notice before the probate can be closed and the remaining tasks in probate typically take one month minimum.
There are three types of probate in Arizona:
1. Informal Probate - - Uncontested estates can normally go through informal probate, which means a judge or court clerk called a "registrar" oversees the process with minimal supervision.
2. Formal Probate - - When the validity of a will is in question or if the decedent died intestate (without a will), formal probate occurs which can include hearings.
3. Supervised Probate - Similar to an informal probate except the personal representative cannot enter an agreement to sell real property or make distributions without a court's approval.
Attorney fees can quickly add to the cost of probate depending on the complexity and length of the probate. Hence, some families choose to use a living trust to avoid probate. However, many of the same steps involved in probate must be performed by the successor trustee of the living trust and sometimes the successor trustee will need assistance from an attorney.
Probate offers the benefits of a court overseeing the steps to ensure all requirements are satisfied and the instructions of the will are followed correctly. If there is a dispute, a court can settle the matter.
Leavell and Rivera, PLC is a full-service law firm experienced in numerous areas of law. Our attorneys provide Arizona families and businesses with quality and affordable legal services. Call for a Free 30 Minute Consultation.
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