How Do I Probate A Small Estate?

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Probating a small estate in Arizona is done by using a Small Estate Affidavit. Small Estate Affidavits are allowed pursuant to Arizona Revised Statute § 14-3973. The general rule for whether an estate can proceed by Affidavit is if a deceased person owned does not own more than $100,000 of real property (such as equity in a house), or more than $75,000 of personal property (including money), then a probate is not required to transfer the assets to the heirs.  If the estate does not meet these minimums, it may be possible to use a Small Estate Affidavit to transfer the property.

For real property, an Affidavit of Succession to Real Property is prepared. As stated above, the equity in the property must be less than $100,000. To determine the value of the property for estate purposes the current years assessed tax value is used, not the Fair Market Value. This can be significant because often times the assessed value for tax purposes is much different than the fair market value. If this value, less any mortgage or encumbrances on the property is less than $100,000, transfer may be done by affidavit. Keep in mind, always check with the lender prior to making this transfer as they may require a probate to refinance.

The affidavit must first be filed with the probate court in the county where the property is located. Along with the affidavit a certified copy of the death certificate must also be filed. Finally, an original will should also be filed, if it exists. Once these documents have been submitted to the probate court, a second, certified copy, of the affidavit must be recorded with the county recorder’s office in the same county.  

Using an Affidavit of Succession is an easy and efficient way to transfer property that meets the criteria. There are some drawbacks though, namely it can sometimes take longer than filing an informal probate since there is a six month statutory waiting period before transfer can be made and the beneficiary is also responsible for verifying expenses and taxes of the decedent are paid.

An Affidavit for Collection of Personal Property is used for closing out small accounts and transferring car titles as long as total value of personal property is less than $75,000. The waiting period for this type of affidavit is only 30 days. So if applicable it is much simpler than an informal probate. Most banks or financial institutions accept transfer by this method as they are released from liability from these types of transfers.

Typically preparation of a Small Estate Affidavit is quick and relatively inexpensive. Thus, it can be a great way to transfer accounts that meet the requirements and avoid a probate. Furthermore, nothing has to be filed as in the case of the Affidavit of Succession, as previously stated most institutions will proceed with a correctly prepared affidavit.

Both affidavits can be helpful in efficiently and expeditiously administering an estate without the need for probate. In some cases however, probate may be a better alternative. As with almost every case, what’s best will vary from person to person and may not always be the same in every case. To determine what mechanism would work best for your situation, call our office today and schedule a free consultation with a knowledgeable attorney who can advise you on the best course of action for the specific facts of your case.

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