If your loved one (the “decedent”) passed away and their assets have not yet been collected and they are not somehow beneficiary designated, you may be wondering if the decedent’s estate needs to go through probate. At the outset, though, one needs to define terms. Typically, non-lawyers often have a concept of “probate” that narrowly includes only a proceeding before a judge and the subsequent administration. Though this is part of probate (in Arizona, the processes with these elements can either be a supervised administration or formal probate), there are also informal probate and probate-ish types of processes. For this blog, we define probate as only a supervised administration, formal probate, or informal probate. We call the remaining processes “probate-ish” as they may in some ways resemble probate and even involve the courts, but most would not consider any of them to be what one imagines probate to look like because they do not require an administration.
You may be asking now, “How can I collect with the probate-ish type processes?” Assuming no probate has been opened in any jurisdiction, you may be able to collect assets of a decedent if the following requirements are met:
- You are the successor to the decedent’s assets. If there is a last will and testament, the successor is typically designated there. If there is not a will, the law imposes provisions on the estate for who the successor is. Depending on the family situation (e.g. mixed family, predeceased descendants, etc.), being sure that one is a successor can be complicated. That is why one should always consider obtaining legal counsel when collecting assets.
- You do not need to collect the assets quickly. This means six months for real property and one month for most other types of property. However, there is a process for a spouse to immediately collect wages, salary, or other compensation.
- The value of all the decedent’s property does not exceed a certain amount. Determining whether a decedent’s assets fall within the threshold provided under statute can be complicated. Many times, because of this complexity, non-lawyers either over-value or under-value the estate. One of these can have expensive repercussions whereas the other may lead to criminal liability. Thus, one should consult with legal counsel to make sure the calculation of the asset value is done correctly.
- In the case of real property, certain debts of the decedent and estate have been paid. The process for the collection of real property requires you to verify that all debts to certain creditors have been paid. If this is not the case, for such reasons as not having liquid assets to pay creditors off before receiving the property or you believe the claims may be dubious, probate is likely the better process to collect the property.
If you need assistance with an Arizona estate, we invite you to schedule a free strategy session with us.