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Estate Planning and Probate Law FAQs

Baumann, Doyle, Paytas & Bernstein, P.L.L.C. offers a full-range of services in the area of estate planning, probate and elder law. Our firm has a combined total of over fifty (50) years of experience in Probate and Elder Law. We understand that this is an emotional and difficult time for families and we are sensitive to the needs of the family members and heirs.

Probate is a legal proceeding in which a deceased person’s property is distributed to his or her heirs. The beneficiaries of the estate are designated by the deceased in a Will or Trust. If there is no Will or Trust, the heirs are designated by Arizona law. Probate proceedings are governed by the law of the state where the deceased person maintained legal residence at the time of death as well as by the probate law of any other state where the deceased owned property at the time of death.

The Probate proceeding is handled by the Superior Court. It involves the appointment of a personal representative, who, after payment of the decedent’s debts, taxes and administrative expenses, distributes the decedent’s property to the heirs or beneficiaries. It is important that probate matters be handled properly to ensure proper management of the decedent’s estate and to ensure that all assets and debts are distributed according to the decedent’s wishes and the law. Failure to comply with these requirements subjects the estate and the personal representative to substantial liability.

In Arizona, probate is a straightforward proceeding which takes six(6) to nine(9) months to complete, assuming no problems arise.

Probate is only necessary if a person dies with:

  • Real property titled in his or her name that exceeds $75,000 in equity value
  • Personal property that exceeds $50,000 in net value, or
  • Unpaid wages of more than $5,000 after death.

Not all estates need to be probated. The need for probate is not determined by whether or not the decedent had a Will. It is determined by the type of property the decedent owned at the time of death and how that property was held. Probate is not necessary for assets held as “joint tenants with rights of survivorship” or assets governed by a contractual designation of beneficiary such as a life insurance policy or a 401(k) plan. Small estates may be handled by means of a special affidavit.

Our experienced attorneys can evaluate the specifics of your unique situation and advise you in the proper administration of the estate and assist in determining whether or not an estate must be probated.

Frequently asked questions concerning Estate Planning and Probate Law

Question:   What does Estate Planning mean?
Answer:   Estate Planning is preparing the necessary legal documents outlining how you wish for your estate to be distributed among your heirs and others and how you wish for your affairs to be handled after your death. Estate Planning includes Wills, Trusts, Living Wills and funeral plans.  Depending on the nature of your assets, this can be relatively simple, or quite complicated.  A professional estate planning attorney can evaluate your specific situation and make recommendations that will best meet your needs. 
Question:   Why should I use an attorney for Estate Planning?
Answer:   An estate planning attorney can create documents that clearly outline your wishes and the process by which your wishes are to be carried out.  An incorrectly or vaguely worded Will or incomplete estate planning documents can create significant problems for your personal representative and/or heirs.  Since you will not be around to express your wishes, it is important for your wishes to be clearly and concisely documented.
Question: What role does the Personal Representative or Executor play in the probate process?
Answer:   The Personal Representative (“Executor” in some states) is responsible for initiating the probate proceeding, collecting and inventorying assets, paying debts owed by the estate, filing and paying taxes, distributing assets to the beneficiaries, and closing the estate. There are legal responsibilities, technical requirements and fiduciary obligations that must be satisfied.  Our experienced attorneys can assist you in the probate process.
Question: Are their ways to avoid the probate process? 
Answer:   Yes, there are several methods to use to avoid the probate process. These methods include creating a joint ownership with right to survival in property such as real estate, automobiles and other titled property; making beneficiary designations on accounts such as payable-on-death (POD) bank accounts and transfer-on-death (TOD) securities; and placing property in a revocable living trust. Our experienced attorneys can help you manage your property to avoid probate and to transfer property smoothly to your beneficiaries after your death.
Question: What are the advantages of avoiding a probate proceeding?
Answer:   The probate process can be time consuming and can delay distribution of property for several months to several years. In addition, prolonged probate proceedings can be costly and attorney fees, court fees and fees for appraisals and other assessments are paid out of the estate.
Question:   What happens to my property if I don’t have a will?
Answer:   In Arizona, the law prescribes how your estate will be distributed if you do not have a Will.  In general, your property will go to your surviving spouse, children, parents, and/or other close relatives.
Question:   What is a Revocable Living Trust?
Answer:   A Revocable Living Trust is a type of trust that takes effect during the testator’s life and can be changed or terminated at any time with the property returning to the testator. The testator also retains control over the property in the trust by naming himself as the trustee and naming a successor trustee to take over trust administration at the testator’s death or incapacitation. These trusts are often used as a means to avoid probate because the title of property is transferred to the trust and is not considered property of the testator at his or her death, thus making the property unavailable for probate.
Question:   What is a Living Will and Advanced Directives?
Answer:   A Living Will or Advanced Directives outlines what types of medical care and life-saving efforts you wish to have employed if you are in a coma or determined to be brain dead. You may also outline if you wish to be an organ donor, kept alive with life support measures and/or feeding tubes, etc.

 

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    2929 North 44th Street
    Suite 120
    Phoenix, Arizona 85018
    Phone: 602-952-8500
    Fax: 602-667-6552