Leary and Wence on Facebook

Leary and Wence, PC - Attorneys at Law

Frequently Asked Questions

  1. What is "probate?"

    At death, your will goes through probate. Probate simply means the process by which your last will is determined to be your final dispositive statement and which confirms the appointment of the person or institution you have named to administer your estate. The term probate is also used in the larger sense of probating your estate. In this sense, probate means the process by which assets are gathered, applied to pay debts, taxes and expenses of administration, and distributed to those designated as beneficiaries in the will. The executor or personal representative named in the will is in charge of this process, and probate provides an orderly method for administration of the estate. The executor is held accountable by the beneficiaries (and sometimes is supervised formally by a probate court). The executor is entitled to a reasonable fee or commission. Probate law generally encourages or provides for partial distribution during the period of administration. Assets may generally be distributed in kind rather than sold during this time. The tax laws generally focus the responsibility for death tax filings and payments from estate assets on the executor under a will. Thus, the choice of an executor is an important one.

    The basic job of administration and accounting for assets must be done whether the estate is handled by an executor in probate or probate is avoided. In the recent past, lawyers and other professionals have advocated the use of probate avoidance techniques (including revocable trusts) in states where the probate process was perceived as being too slow and too costly. Many states have simplified or streamlined their probate processes over the years. In such states there is now less reason to employ such probate avoidance techniques.

    For more information on probate in Arizona, Scottsdale, Phoenix, Tempe, Chandler, Mesa, Glendale, Surprise, Sun City, and all of Maricopa County, please contact Leary and Wence, Mesa Probate Attorneys at (480) 388-3172.

  2. What are the types of Arizona probate proceedings?

    There are three types of probate in Arizona, informal, formal and supervised. Most Arizona probates are informal because they are usually cheaper in terms of attorneys' fees and more timely. Not all estates however, are eligible for informal probate. Contested estates are usually resolved in a formal probate, which can include probate court hearings, depositions, motions, discovery and a trial just as any other Superior probate Court litigation.

    For more information on probate in Arizona, Scottsdale, Phoenix, Tempe, Chandler, Mesa, Glendale, Surprise, Sun City, and all of Maricopa County, please contact Leary and Wence, Mesa Probate Attorneys at (480) 388-3172.

  3. When is probate necessary?

    Probate is not always necessary in Arizona after a person dies. When a resident of Arizona dies, there are two primary reasons to probate the decedent's estate with an Arizona probate court:

    1. The decedent has assets that cannot be transferred to the decedent's heir(s) without a probate, and/or

    2. The estate of the decedent desires to eliminate or reduce the claims that creditors may make against the estate. Under Arizona law the general rule is that creditors who do not file a formal claim with the estate within four months after the publication of a notice to creditors are barred forever of bringing their claims.

    For more information on probate in Arizona, Scottsdale, Phoenix, Tempe, Chandler, Mesa, Glendale, Surprise, Sun City, and all of Maricopa County, please contact Leary and Wence, Mesa Probate Attorneys at (480) 388-3172.

  4. When is probate required to transfer real estate?

    In Arizona probate may be required to legally transfer title to an asset from the decedent to the people or entities legally entitled to inherit the asset. One of the most common reasons a probate is necessary is to transfer the title of Arizona real estate. If a person dies owning real property that does not pass automatically by operation of law, a probate may be required to appoint a personal representative with the power to sign a deed that conveys the property from the estate to the decedent's heir or heirs.

    Arizona real estate transfers automatically by law after the death of an owner if the title was held in joint tenancy or as community property with right of survivorship or if the owner recorded a valid beneficiary deed. Without a probate and a properly prepared and recorded deed signed by the personal representative, the title to the real estate remains in the name of the estate and not the heirs. Furthermore, title is clouded and probably not marketable because no title insurance company will insure clear title until probate is completed.

    For more information on probate in Arizona, Scottsdale, Phoenix, Tempe, Chandler, Mesa, Glendale, Surprise, Sun City, and all of Maricopa County, please contact Leary and Wence, Mesa Probate Attorneys at (480) 388-3172.

  5. What if the estate is small?

    In certain circumstances, an Arizona probate may not be required to obtain property or change title to the decedent's property. These circumstances are (1) the decedent's employer owes wages, salary or other compensation to the decedent is less than $5,000 and the decedent's spouse seeks the money, (2) the value of the personal property of the estate less liens and encumbrances is less than $50,000, and (3) the value of the real property of the estate located in Arizona less liens and encumbrances thereon is less than $75,000. (Arizona Revised Statutes §14-3971). This small estate probate exemption cannot be used until thirty days after the decedent's death, except in the case of the spouse of a decent who seeks the deceased's employment compensation.

    For more information on probate in Arizona, Scottsdale, Phoenix, Tempe, Chandler, Mesa, Glendale, Surprise, Sun City, and all of Maricopa County, please contact Leary and Wence, Mesa Probate Attorneys at (480) 388-3172.

  6. What is the cost to probate an estate?

    The cost of an Arizona probate is the sum of: (i) legal fees (if you use a probate attorney), (2) costs such as the County Superior Court filing fee and the cost to publish the Notice to Creditors in a newspaper, (3) the cost to obtain a bond if a bond is required, and (iv) the compensation payable to the personal representative unless it is waived by the personal representative. If a bond is not required and the personal representative acts without compensation without hiring a probate attorney, the total cost can be minimal.

    If a lawyer is involved, legal fees can vary greatly depending on the lawyer. Some lawyers may do probates for a fixed fee, but most charge on an hourly basis because it is not possible to predict how much time will be required to complete the probate. Because Arizona does not authorize lawyers to charge legal fees as a percentage of the value of the estate, a simple uncontested informal Arizona probate can cost $3,000 or more regardless of the value of the estate. Legal fees in a formal or supervised probate or if there is litigation over the estate can be substantially more.

    For more information on probate in Arizona, Scottsdale, Phoenix, Tempe, Chandler, Mesa, Glendale, Surprise, Sun City, and all of Maricopa County, please contact Leary and Wence, Mesa Probate Attorneys at (480) 388-3172.

  7. When should a person with a claim against a decedent present the claim in a probate proceeding?

    When a person dies he or she may be leaving behind debts, obligations or possible liabilities to other persons. Claims may be held by creditors, contract holders, or even by tort plaintiffs. In Arizona there is a fairly short time to present probate claims. A claim against an estate must be made or presented in writing within four (4) months after the date of first publication of the estate’s notice to all possible creditors and claimants. This notice is usually published in a local newspaper in Mesa, Phoenix, Scottsdale, or elsewhere in Arizona. The personal representative publishes the notice, or directs his lawyer to do so.

    The claim presented should be fairly detailed. It should describe the basis of the claim, the amount claimed, the name and address of the claimant; and if it is not yet due or it is secured by collateral, state the due date and/or describe the collateral securing the debt. Then it is up to the personal representative to accept or deny the claim. If he or she denies or rejects the claim, the claimant may have to litigate the claim.

    The Scottsdale law firm of Leary & Wence, PC can handle the presentation and/or litigation of all types of probate claims against an Arizona estate. While our firm is based in the Phoenix area, we can handle claims in probate throughout Arizona. Our lawyers are also licensed in Colorado, Nebraska and Arkansas.

    For more information on probate in Arizona, Scottsdale, Phoenix, Tempe, Chandler, Mesa, Glendale, Surprise, Sun City, and all of Maricopa County, please contact Leary and Wence, Mesa Probate Attorneys at (480) 388-3172.

  8. What happens if I die without a Will, and what happens if I die with a Will?

    In Arizona, if you die without a Will, your assets will be divided among and distributed to your immediate family by “intestate succession.” This means that your entire estate, consisting of your separate property and your half of the community property, goes to your spouse if you do not have children, or if you have children and they are also the children of your spouse. If you have children but only some of them are also your spouse's children, your spouse will receive one-half of your separate property and no interest in your half of the community property. That part of your estate which does not pass to your spouse goes to your children, or parents (if you have no children) or siblings (if you have no children and your parents are deceased). Since Arizona law will determine who gets your probate assets when you don’t have a Will, it is quite possible that people may inherit your property contrary to your wishes. That’s why it’s a good idea to have a Will.

    In Arizona, if you die with a properly executed Will, the person is said to have died "testate," meaning that the person has a valid Will. The probate assets of the decedent pass to whoever is named in the Will. Here is a link to the Arizona statutes describing the intestate share of the surviving spouse:

    http://www.azleg.state.az.us/FormatDocument.asp?inDoc=/ars/14/02102.htm&Title=14&DocType=ARS

    For more information on probate in Arizona, Scottsdale, Phoenix, Tempe, Chandler, Mesa, Glendale, Surprise, Sun City, and all of Maricopa County, please contact Leary and Wence, Mesa Probate Attorneys at (480) 388-3172.

  9. What is Probate Litigation?

    A probate proceeding is a civil court proceeding, but with the potential to not include parties adverse to each other. In a perfect world, a probate case would not involve litigation because all heirs, creditors and governmental authorities would agree on all payments of the decedent’s liabilities and disbursement of all of the remaining assets.

    Unfortunately, and all too often, disputes arise between one or more interested persons in a decedent’s estate. Most often, litigation between these parties is necessary to reach a final disposition of all claims and disputes, so the estate can finally be closed.

    Sometimes heirs or other beneficiaries of the estate disagree with the way the personal representative is administering the estate. Sometimes the personal representative may disagree with a creditor’s claim against the estate. Also, there are many cases where the heirs or others contest the decedent’s will, or the assertion that there is no will.

    Leary & Wence, PC strives to handle all probate matters without resort to litigation. However, many times this is not possible. When these situations arise we are ready to pursue or defend claims in probate through litigation. We have over 25 years of litigation experience to aggressively pursue and defend claims of any nature in the most cost effective manner.

    For more information on probate in Arizona, Scottsdale, Phoenix, Tempe, Chandler, Mesa, Glendale, Surprise, Sun City, and all of Maricopa County, please contact Leary and Wence, Mesa Probate Attorneys at (480) 388-3172.

  10. Who can serve as a Personal Representative of an Arizona Estate?

    Unlike many states, Arizona restricts who may be appointed as a Personal Representative (“PR”) of an informal probate of an estate. Arizona Revised Statute §14-3301 permits the following persons or entities to apply for a PR appointment:

    1. The surviving spouse of the decedent;
    2. And adult child;
    3. A parent;
    4. A brother or sister;
    5. An heir;
    6. A person named as PR in the will;
    7. For nonresidents, any person listed above; or the PR appointed in the decedents’ domicile;
    8. For veterans, the Department of Veterans’ Affairs;
    9. A creditor of the estate, but only 45 days after death of the decedent;
    10. The public fiduciary, if none of the above are available.

    In the event of a disagreement over who should be appointed PR, Arizona law provides the following priority for the appointment of a PR:

    1. The person named in the will;
    2. The surviving spouse of the decedent who is a devisee;
    3. Other devisees of the decedent;
    4. The surviving spouse of the decedent, even though not a devisee;
    5. Other heirs of the decedent;
    6. If the decedent was a veteran, the Department of Veterans’ Affairs;
    7. Any creditor, if 45 days have passed since death;
    8. The public fiduciary.

    For more information on probate in Arizona, Scottsdale, Phoenix, Tempe, Chandler, Mesa, Glendale, Surprise, Sun City, and all of Maricopa County, please contact Leary and Wence, Mesa Probate Attorneys at (480) 388-3172.

  11. What is a Pet Trust in Arizona?

    In Arizona it is lawful to create a trust specifically for the care of a domestic animal or pet after one’s death. Pet trusts have been created for the continued care of dogs, cats, horses, birds and other animals. While a person is still alive he or she can establish a trust and provide for care instructions. The trust can be funded before or at the pet owner’s death. Although not required, it is advisable to nominate the care giver in the trust document. It is also advisable to obtain the consent of the person nominated as the care giver. The amount of money to fund the trust should be calculated by the current care costs of the animal and multiplied by the expected life of the designated animal(s). It is always better to err on the high side when estimating care costs and life expectancy. Any money in the trust at the time of the last animal’s death is returned to the heirs or beneficiaries of the original animal owner, unless otherwise designated by the pet owner. Leary & Wence, PC can handle the creation and operation of a pet trust in Arizona. We can also assist someone who has an interest in the care of the animal who believes that the appointed trustee is not taking adequate care of the animal. Sometimes this requires filing a petition with the local probate court. Call Leary & Wence, Mesa probate law specialists!

    For more information on probate in Arizona, Scottsdale, Phoenix, Tempe, Chandler, Mesa, Glendale, Surprise, Sun City, and all of Maricopa County, please contact Leary and Wence, Mesa Probate Attorneys at (480) 388-3172.

  12. What is Commercial Litigation?

    Businesses, including partnerships and corporations, can face a number of legal disputes that fall under the umbrella of commercial litigation. Perhaps a shareholder brings a suit alleging that a company's officers or directors have breached their fiduciary duties or had a conflict of interest in a transaction that harmed the company. There could be a dispute among the partners or shareholders of a business. Corporate litigation that seeks to challenge mergers, acquisitions and financing arrangements are also common. At Leary and Wence, PC we handle all types of commercial litigation, call us today!

    For more information on probate in Arizona, Scottsdale, Phoenix, Tempe, Chandler, Mesa, Glendale, Surprise, Sun City, and all of Maricopa County, please contact Leary and Wence, Mesa Probate Attorneys at (480) 388-3172.

  13. What Is Required for a Valid Will Under Arizona Probate Law?

    For a Will to be valid in Arizona, the Will must be; in writing; signed by the decedent or in the decedent's name by some other individual in the decedent's conscious presence and by the decedent's direction; and signed by at least two people, each of whom signed within a reasonable time after that person witnessed either the signing of the Will or the decedent's acknowledgment of that signature or acknowledgment of the Will.

    For more information on probate in Arizona, Scottsdale, Phoenix, Tempe, Chandler, Mesa, Glendale, Surprise, Sun City, and all of Maricopa County, please contact Leary and Wence, Mesa Probate Attorneys at (480) 388-3172.

  14. What is a Trust, and where does a trust fit in with the probate process?

    A trust is a separate legal entity created either during one’s lifetime or upon death by a person’s Will. A trust is like a corporation or limited liability company that is legally considered separate from the person that created it. Many times people create trusts as part of their overall estate plans. Other times people draft their Wills such that upon death a trust is created to control certain property after death.A trust can own property just like a person or corporation can own property. A trust can earn income and usually must pay taxes like everyone else. Trusts can also be set up for charitable purposes, such as to hold money or property to be given away to charities after death.

    One of the most common mistakes people make when creating trusts during their lifetime is they neglect to actually transfer title to property during the trust while they are still alive. This can cause problems after death as there may be disputes over what the trust actually owns and what it does not. Under most circumstances, a person can create a trust to own real or personal property, and that person can still control the property by naming himself as the sole or controlling trustee during life. Then upon death the person named as successor trustee takes control of the property of the trust and either manages it or disposes of it as directed by the original owner or trustee.

    The person or persons creating the trust are called Settlor(s) or Trustor(s). The person in charge of the trust property is called the Trustee. If there are two or more Trustees they are called Co-Trustees. A person nominated to assume the role of trustee after a certain event, such as death or incapacity, is called Successor Trustee(s). The person or persons who benefit from the trust are called Beneficiaries. Once the purposes of the trust are accomplished the trust usually terminates. Also, the person establishing the trust may designate a period of time or the occurrence of an event to trigger the termination of the existence of the trust.

    Trusts and their administration can become difficult or complicated, especially when there is disagreement among beneficiaries and/or trustees. It is wise to consult legal counsel such as Leary & Wence, PC when trust issues arise. Arizona law grants broad jurisdiction to the Superior courts in Arizona over all matters or proceedings concerning the internal affairs of trusts with some material connection to Arizona. Leary & Wence, PC, through its Scottsdale offices can help with all trust issues and problems in Arizona.

    For more information on probate in Arizona, Scottsdale, Phoenix, Tempe, Chandler, Mesa, Glendale, Surprise, Sun City, and all of Maricopa County, please contact Leary and Wence, Mesa Probate Attorneys at (480) 388-3172.

  15. If the decedent left personal property that totals $50,000 or less, is there a small estate procedure that can be used to transfer this property so that a probate estate would not have to be opened?

    Yes. This procedure is handled by a document called an Affidavit for Collection of Personal Property, which can be prepared by Leary & Wence. (It is not filed with a court). The entire value of the personal property owned by the decedent at death cannot exceed $50,000. An affidavit is presented to the person, business or agency holding the property owed to the decedent. Personal property, includes things such as wage claims, personal property, automobiles, bank accounts, stocks, brokerage accounts that were held in the decedent’s name. These are collectible by presenting an affidavit. For additional information, refer to: Affidavit for Collection of Personal Property A.R.S.§ 14-3971(B).

    For more information on probate in Arizona, Scottsdale, Phoenix, Tempe, Chandler, Mesa, Glendale, Surprise, Sun City, and all of Maricopa County, please contact Leary and Wence, Mesa Probate Attorneys at (480) 388-3172.

  16. If the decedent left real estate valued at $75,000 or less, is there a small estate procedure that can be used to transfer this property so that a probate estate would not have to be opened?

    Yes. In the case of real property, you have to wait six months after the date of death. This procedure is handled by a document called an Affidavit of Succession to Real Property, which can be prepared by Leary & Wence, and is filed with the Clerk's office. The value of the real estate may not exceed $75,000. There is a fee of $146.00, and, generally, $26.00 for the certified copy of the affidavit that you will need to record. (The certified copy fee is dependent on the number of pages; additional pages are $0.50.) This fee is subject to change. A certified death certificate and the original will (if there is one) must accompany the affidavit. For additional information, refer to: Affidavit of Succession to Real Property A.R.S. §14-3971(E).

    For more information on probate in Arizona, Scottsdale, Phoenix, Tempe, Chandler, Mesa, Glendale, Surprise, Sun City, and all of Maricopa County, please contact Leary and Wence, Mesa Probate Attorneys at (480) 388-3172.

  17. Does all property have to go through probate?

    Some property can avoid the probate process. Property or other assets held in trusts may be exempt. To talk to the professionals estate planning lawyers Leary and Wence today.

Contact us today. We look forward to hearing from you.

DISCLAIMER: This site and any information contained herein are intended for informational purposes only and should not be construed as legal advice. Seek competent legal counsel for advice on any legal matter.