You are currently viewing 5 FACTS ABOUT PROBATE


  • Post category:Family Law

Every state is a little different with different laws. You need to speak to a lawyer to insure you are working within the laws of your state. In the 5 facts below, we are using Arizona, a community property state, as an example. Here are 5 things that you should know about probate.

1. There are assets that do not need to go through probate. While they may differ in different states, these are common entities that don’t need to be probated.
 Living Trust assets: Check with your family law attorney to see if this is something you should consider in estate planning.
 Joint tenancy property. Basically, this is anything like a home, a checking account, a saving account or any asset held – or owned – by two people. The survivor automatically gains the asset.
 Right of survivorship property. Any property held by a married couple and held with right of survivorship will go directly to the surviving spouse without probate.
 Specified beneficiaries: This can be a payable-on-death bank account, a transfer-on-death real estate deed, contracts that name a beneficiary on policies like insurance policies or annuities or a retirement accounts with named beneficiaries.

2. Assets of a certain value may be claimed by affidavit. This includes the personal property of an estate if it is valued at less than $75,000 or real estate valued at less than $100,000. There is a waiting period for each category and restrictions such as the payment of all debts and funeral expenses. Check with your family law attorney and make sure you meet all qualifications.

3. The simplest form of probate is informal probate. It requires an unchallenged, valid will. A personal representative that is appointed by the state will work with a minimum of court supervision.

4. A formal probate is used when there are legal issues that need to be solved. This could be whether a will is valid or not. Other examples would be a will that is open to conflicting interpretation or a dispute about who should be the personal representative. Having an experienced attorney write the will can help you avoid problems such as these.

5. Protection for an heir, a creditor or another property usually results in a supervised probate. Any person with an interest in the estate can ask the court for this type of probate. In a supervised probate, the personal representative must get permission from the court before taking any actions from paying a creditor to distributing assets.

Understanding the process of what happens after your death helps make you realize that having a legal, binding will is important. The best way to achieve this is by working with an experienced family law attorney who can not only create the legal document, but, also, help you understand and make the decisions that best express your final wishes.