Common Questions and Misconceptions About Probate

As an experienced, licensed estate planning attorney, I have seen a lot of poor advice given by a friend of a friend with no legal qualifications whatsoever to be giving advice. Poor legal advice and subsequent poor estate planning can cost you and your family thousands of dollars to rectify. Here are the worst offenders and what you need to know.

What is Probate?

Probate is the lengthy and costly legal process of transferring assets out of the name of a loved one who has passed away. Probate comes from a Latin word that means “to prove”. The purpose of probate is to determine who is entitled to the assets of the deceased and the judicial process to transfer the legal title of an asset out of the name of the deceased and to the parties entitled to receive the asset from the estate.

What Does That Mean in English?

Let’s talk about my friend, Mr. Estate. Mr. Estate had a son and a daughter. He made arrangements during his life to transfer his house and his car to his son and named his daughter as the beneficiary of his IRA. After Mr. Estate passed away, the children discovered that he had some stocks and bank accounts that were still in Mr. Estate’s name with no beneficiary designation. How do Mr. Estate’s children collect the money in those accounts? The answer depends on a few key facts, but the value of the accounts will determine the exact process.

For personal property like bank accounts and stock, that magic number in Arizona is $75,000. There is a summary procedure to collect assets that total less than $75,000 rather than a full probate.

For real property, the number is a little higher at $100,000. If the house or real property has more than $100k of equity, a probate is required to be filed through the courts. If the real property is worth less than $100k it can be collected by a summary procedure through the courts, but after a six-month waiting period.

Is Probate Unavoidable?

With proper planning such as a trust, probate can be avoided and is not usually required in Arizona. However, in some Midwestern states, probate may be required, but it is my understanding that it is not as comprehensive as the process is in the Southwestern states where I practice law.

Is a Will Sufficient to Avoid Probate?

A last will and testament does not actually transfer the title of your assets into anyone else’s name, which is why a will is not sufficient to avoid probate.

If there is a last will and testament, this helps to determine the beneficiaries, and which asset was meant for which beneficiary. The will is submitted to the probate court, and the process continues from there. If there is not a will, then Uncle Sam has given us a set of default laws to determine who receives your assets after you are gone.

As for Mr. Estate, his real property and personal property were discussed above. However, we have not yet considered the value of his tool collection that he wanted to go to his son or the jewelry from the late Mrs. Estate that he wants to go to his daughter. Because this transfer of personal property was in his will, the court is not needed to handle those transfers, unless there is a dispute.

If there is a dispute about how to handle the estate or who should get what, then probate court is the way to handle those types of claims.

Is Some Planning Better than No Planning?

Now that we know what probate is, we can better plan to avoid it, but not all plans are created equal. To avoid probate, you simply need to make sure that all of your assets will transfer upon your death. The best way to do this is with a revocable trust prepared by a licensed attorney.

Only a licensed attorney can give you the personal estate planning advice you need to know to create and fund the right plan for you and your family and be held accountable for it. While it may seem the cheaper option not to get the advice of an attorney, it will usually cost far more in the end.

To learn the best way for your family to avoid probate, call us at (480) 924-4424 to schedule a free Personal Family Legal Session. Our attorneys can help you review or create a plan, giving you peace of mind knowing your family will be taken care of.