How Can Estate Planning Help Me in Avoiding Probate?

Probate is the term used for the legal procedure that involves the identification of assets, properties, and liabilities after a person is deceased and then transferring said assets to the beneficiaries and heirs of the decedent. Probate superior court is where this procedure occurs. It is an essential element of estate planning in Arizona.

The Basics of Probate

There are two primary types of probate in Arizona, which includes formal and informal. Most probates in Arizona are informal, but a few are formal. Informal is less expensive and doesn’t warrant a court hearing. However, formal probate court is a complicated process that will include a court hearing. If a Will is contested, more than one court hearing could ensue. Discovery, motions, depositions, and hearings result in the formal probate process, which quickly raises expenses.

The Process of Probate

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When a person dies, and probate is deemed necessary, the following process takes place.

• An executor (personal representative) will file up to 11 legal documents with the Court Clerk.
• When the Court Clerk approves the submitted probate documents, the executor handles the protocol of collecting assets, paying bills, and selling and/or distributing assets.
• The executor is also responsible for publishing a notice in the newspaper that probate documents have been filed.
• The executor will oversee all the paperwork, division, distribution, sales, and other tasks throughout the probate process as long as it is open.

Avoiding the Probate Process

Because probate comes with the risk of being a tedious wait before assets are distributed, it’s wise to take the appropriate steps to avoid the probate process.

It is a common misunderstanding that people with a Last Will and Testament help their family to bypass the procedure, but this is not true. A Will does provide the instructions for what to do with assets and such as per the decedent’s wishes, but an informal probate will still be necessary in many instances within Arizona.

Even though informal probate court is generally a smooth process that doesn’t require anyone to go before a judge in court, results in a mandatory waiting period before the probate can be closed.

Two main reasons to avoid probate include:

• Staying out of the lengthy and expensive formal probate court process; and
• Avoiding the delay and hassle of the informal probate process.

The Four Methods of Avoiding Probate in Arizona

1. Institute a Trust

It is recommended by the American Bar Association (ABA) to establish a living or revocable trust to avoid probate. Tax benefits may also be an advantage of establishing a living or revocable trust.
Trusts are a flexible method of implementing the transfer of a person’s assets and property before they die. The trust creator maintains full ownership of said assets for the remainder of their lives, while establishing a pathway for the distribution of their assets to their preferred heirs and beneficiaries without court involvement.

2. Title Property with Rights of Survivorship

Arizona probate may be avoided by filing a form of ownership with rights of survivorship when you acquire or title property. There are two different forms of ownership with rights of survivorship you can use.

1. Community Property with Rights of Survivorship is for married couples
2. Joint Tenants with Right of Survivorship is for all individuals, related or not

Always get advice from an Arizona estate planning attorney before making any plans for avoiding probate.

3. POD or TOD – Accounts Payable Upon Death or Transfer of Death

Payable on Death (POD) or Transfer on Death (TOD) are other options that will help you avoid probate for your family. These options allow for the designation of assets including, but not limited to real property, vehicles, bank accounts, and brokerage accounts. This may also be referred to as a beneficiary designation.

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4. Small Estate Procedures

In cases where probate cannot be completely avoided, you can at least make provisions for a small estate using the small estate procedures Arizona provides. In the event that the total value your estate is less than the values set by statutes, you may make such provisions.

Statutory Values

• Equity in real property is less than $100,000
• Total value of personal property including vehicles and bank accounts is less than $75,000

If you need help with estate planning to avoid probate, are interested in learning more about avoiding probate with estate planning, or if you need help navigating the probate process, feel free to schedule a free 30-minute consultation and let us assist you in your estate planning goals today.

This article is provided as a public service by the Law Offices of C. David Martinez, PLLC. While the information on this site is about legal issues, it is not legal advice or legal representation. Because of the rapidly changing nature of the law and our reliance upon outside sources, we make no warranty or guarantee of the accuracy or reliability of information contained herein.