Our Arizona estate lawyers discuss when to seek an estate lawyer and when to seek a probate lawyer during emotionally trying times.
Nobody likes thinking about their death or the death of a loved one, but careful planning can help avoid additional stress that can be caused when there is confusion about how to distribute the decedent’s estate. We often get family members calling us in a rush at the end of life or shortly after the funeral looking for assistance. During these times, it’s important to keep in mind the distinction between probate and estate law. Starting your search for a lawyer with the correct type of law will streamline the process and get you going in the right direction. Our Arizona law firm handles estate law, but not probate matters. Read on to learn more about the distinction between the two. If you’re looking for a free consultation with an Arizona estate lawyer, call 480-448-9800.
Estate law, or estate planning, is the creation of legal documents while that person is still living. It is also important for most of these documents that the person still be of sound mind, or have the requisite legal mental capacity, to execute these documents. Estate planning doesn’t just involve the distribution of one’s assets. It can also designate who will be in charge of distributing the estate and making decisions regarding medical care if the person loses the legal capacity to make their own medical decisions. Documents that someone can make part of their estate plan include:
Also known as a last will and testament, this is the most common type of estate planning document. Someone looking to create an estate plan should execute a will at the very minimum. Most people associate a will with distributing assets, which is true, but not a will’s only function. A testator (someone who creates an estate plan) can also designate an executor for their estate. An executor is a person who files the death certificate and will with the court and makes sure everything goes according to plan. The third main function that a will serves is designating a legal guardian for your children if you pass away before they reach 18.
Irrevocable trust: This type of trust can’t be changed or canceled. Because of the finality of trusts, they come with certain tax benefits. Placing assets in trusts can also protect them from creditors.
Revocable trust: Unlike an irrevocable trust, this type of trust can be amended or canceled.
A living will allows testators to make medical decisions if they ever are in circumstances where they can’t make them themselves. Examples of these circumstances include if someone is in a persistent vegetative state (coma) or at an advanced stage of a neurological disease like Alzheimer’s or dementia. Some of the decisions a testator can make on a living will include whether to be kept on life support, a feeding tube, ventilation, receive CPR and drugs, and more.
Powers Of Attorney
Health Care Power of Attorney: This document serves a similar function to a living will, but with a different result. Instead of the testator predetermining medical decisions like in a living will, a health care power of attorney allows someone else to make those decisions if the testator ever loses the capacity to do so.
Probate law applies when a decedent has passed away. All assets that aren’t distributed through a will, trusts, or other legal instruments will need to be figured out in probate court. Even estates with proper estate planning must go through at least some probate court unless they meet certain requirements.
Small Estate Affidavit
Arizona has set certain limits on what is considered a “small estate.” The benefit of being designated a small estate is that a small estate can be excused from the probate process. A small estate must not have personal property totaling more than $75,000. Personal property includes jewelry, furniture, antiques, collectibles, artwork, china, cash, bonds, and more. In short, “personal property” means everything besides real estate. “Real property” is the estate planning term for real estate assets. To qualify for a small estate affidavit, the estate must not have more than $100,000 in real estate assets. For personal property, a small estate affidavit can’t be filed until at least 30 days after the decedent’s death. For real property, a small estate affidavit can’t be filed until at least 6 months after the decedent’s passing. If the decedent is due unpaid wages of $5,000 or less, their spouse can request them through an Affidavit to Collect Personal Property. To use a small estate affidavit, the person filing the affidavit must either be named in the will or related to the decedent.
If the decedent’s estate exceeds the limits for a small estate affidavit, the estate won’t be exempt from the probate process. Following the steps to the probate process properly is vital to ensuring the decedent’s estate is distributed efficiently and accurately.
Find & Read The Estate Plan
After a loved one has passed away, it’s important to identify whether or not they had an estate plan before initiating the probate process. Some people will make their estate plan’s existence known after creating it, while others may keep it more under wraps. Passing away without a will or other estate planning documents is known as dying “intestate.” Each state has its own laws on how to distribute the property of someone who has passed away intestate.
Figure Out Who Will Serve As The Personal Representative
This is usually the executor named in the will. However, if the executor is unable to fulfill their duties, and the decedent didn’t name an alternative executor or they are also unable to fulfill their duties, the court will assign a personal representative based on a certain legal order. The court will first turn to a legal spouse, children, parents, and other relatives. The Department of Veteran’s Services can be assigned as a personal representative if the decedent was a veteran or a veteran’s spouse or child. In some situations, a decedent’s creditor may be named the personal representative of their estate in the probate process.
File A Petition In Probate Court
The personal representative will file the death certificate and estate plan, if applicable, in probate court.
Notify Heirs & Creditors
All beneficiaries should receive a copy of the will if it exists. Creditors need to be notified as well, as they may have a stake in the decedent’s estate.
Inventory Assets & Debts
This is the next responsibility on the personal representative’s shoulders. The appraisal of all assets and debts should be provided to all beneficiaries and creditors.
Pay Off Taxes & Debts
Some portions of the decedent’s estate could be subject to taxation and debt. The personal representative may even need to file taxes on the decedent’s behalf.
Distribute The Estate
Once all liabilities against the estate have been dealt with, the beneficiaries can be given their allotted share. This is either what the testator planned in their estate plan documents, or how intestate succession laws apply to the case.
Affordable Arizona Estate Planning Lawyers
The probate process can be overwhelming and expensive, especially if creditors and relatives dispute the estate plan. That’s why it’s crucial that your estate plan complies strictly with Arizona law. Careful planning now can save your family more than a headache after your passing. It can also preserve how much is left in your estate after taxes and other costs. At Arizona Will Attorney, we offer experienced legal guidance with your estate plan. Contact us for your free consultation with an Arizona estate planning lawyer or call us at 480-448-9800.