What is the origin of the word "Probate"?
The root of the word is "provar" which in Latin means to prove. Probate historically included a process where a Court needed to ascertain whether the Will is really the will of the decedent. The Will needed to be "proved" to be authentic.
Probate has since taken on a wider meaning. It has become synonymous with estate administration after death. So the estate of a person dying without a will (dying "intestate") is administered in court, as well as the estate of a person dying with a will (dying "testate").
Why is a court in charge of estate administration after death?
The normal way that we transfer ownership of property that comes with a title is to sign the title over to someone else. An example is signing the back of your car title to transfer it to a purchaser. After a person dies, signing their name becomes a little difficult (unless you are from Chicago where for years the people in the cemeteries voted). And so it becomes necessary for a Court to authorize another individual called a "Personal Representative" to sign transfers of titled property on behalf of the decedent.
So, for example, in the case of estate administration involving real estate, first the Court would appoint a "Personal Representative". Then the personal representative would obtain evidence from the Clerk of the Court of his having been appointed the Personal Representative. The evidence is called "Letters of Administration". Then the Personal Representative issues a deed of distribution of the land to whomever is designated to receive it under the Will. Both the deed and the Letters of Administration would be recorded in the office of the County Recorder to establish on the public record that the Personal Representative really had the power to sign the deed.
Are there some kinds of property that do not need Court Estate Administration?
Many kinds. Here are some examples:
- Real property which is held in joint tenancy with right of survivorship passes to the surviving joint tenant without probate. There is a need to complete some paperwork, however.
- Real property which is held in Community Property with right of survivorship passes to the surviving spouse without probate. There is a need to complete some paperwork, however.
- Insurance policies pass directly to a beneficiary, if one has been designated.
- IRA's pass directly to a beneficiary, if one has been designated.
- Annuities pass directly to a beneficiary, if one has been designated.
- Bank accounts held jointly pass to the survivor automatically.
- Bank accounts and securities accounts held as TOD ("Transfer on Death") accounts move to the designated beneficiary.
- Bank accounts held as ITF ("In Trust For") accounts move to the designated beneficiary.
- Property in the name of a Trustee who has been instructed to convey the property from the person who set up the trust to the named beneficiaries of the trust.
Do all estates need to go through probate?
No. First look to see if the estate contains probatable property. If it all passes by joint tenancy designation or beneficiary designation, there is no need for probate.
Second, if there are probatable assets, look at the amount. If the real property located within the State of Arizona is worth $100,000 or less according to the assessor's statement current at the date of death, the real property can be collected by affidavit. Tf there is a mortgage balance, subtract that from the amount of the assessor's value, and if the resulting amount is less than $100,000, the property can still pass by affidavit instead of probate. If the personal property in the estate is worth $75,000 or less, it too can be collected by affidavit.
What is Collection by Affidavit?
In the case of real property, you have to wait six months after the date of death. If you do not want to wait the six months, you can file a regular probate immediately. Once the six months elapses, you open a court case and ask the court's Probate Registrar for an order allowing you to record your affidavit with the County Recording, evidencing the transfer of ownership of the real property. Obviously, this only works in simple cases where the Probate Registrar is clear on who is supposed to inherit the property. The law requires that the affidavit contain a representation that the debts of the estate have been paid, after the statutory allowances for widow and family have been met.
Personal property, which includes things like tangible wage claims, personal property, automobiles, bank accounts, and even brokerage accounts. These are collectible by presenting an affidavit, provided the value of all such property does not exceed $75,000.
What is the relationship of probate to estate taxes?
Henry VIII relied on probate to raise taxes to finance his armies. When land passed through probate, the estate paid a tax. Then the Church created the idea of a trust, which avoided probate and deprived the King of his tax revenues. Henry VIII went to Parliament and had them pass the "Rule Against Perpetuities" which effectively said that a trust can't go on forever, so that its contents can be probated and taxed.
Today, there exists little relationship between probate and estate taxes. If you own it, it is counted toward computing your estate tax obligation, whether or not it has to be under a court's estate administration in order for title to pass to others. However, the person who is appointed by the Court to be the Personal Representative of the estate is required to file the estate tax return, if one is required. Further, the Personal Representative can become personally liable for the estate taxes, if he distributes the assets of the estate to beneficiaries, failing to pay all or a portion of the tax bill to the taxing authorities.
How long does probate take?
Let us assume that the beneficiaries of the estate are not fighting. Let us assume further that everybody knows what are the assets of the estate, where they are, and that the taxes on the estate, if any, are easy to compute. That estate will likely settle in six months. But more important, the Personal Representative, once appointed in Arizona, has immediate authority, in ordinary circumstances, to transfer some or all of the assets to the estate beneficiaries.
What are the duties of a Personal Representative?
Distilled down to the basics:
- Obey Court orders
- Locate and collect the estate assets
- Pay the just debts of the estate, including taxes
- Deal in good faith with estate beneficiaries and account to them
- Distribute the estate assets as called for in the Will or otherwise by law
Is a Personal Representative entitled to be compensated?
He is entitled by law to "reasonable" compensation. This is usually on an hourly basis, so it is essential to keep a log of the dates of service, the description of the service, and the amount of time expended.
Are probate lawyers in Arizona entitled to take a percentage of the estate as the fee for probate?
The probate court has to be satisfied that the lawyer's fee was reasonable in each case. There is no statute, like other states have, providing that an attorney gets a percentage of the estate. As a practical matter, Arizona is a Sunbelt state. Lawyers love to practice here, which means that there is a lot of competition. Therefore, you should be able to find a lawyer who is willing to probate a non-contested estate on an hourly basis.