Schneider & Onofry offers a full range of estate and probate services, including probate and trust administration, estate planning, and probate and trust litigation.
If you are like most people, you have little background or familiarity with probate or trust administration and, if you are responsible for your loved one’s estate, your responsibilities as a personal representative or successor trustee.
You do not need to face this challenge by yourself. Attorneys Luane Rosen can guide you through the process and assist you with the legal requirements, procedures and unexpected issues, and you are invited to contact them for an appointment.
Whether you are named as Personal Representative in a Will, or are the spouse or adult child of someone who died without a Will, we can help you handle the probate of your loved one’s estate by:
- representing you in probate court proceedings
- preparing and filing the required documents with the probate court
- notifying the estate creditors
- compiling an inventory of the estate assets
- obtaining appraisals and valuations of estate assets
- paying the estate’s final obligations and working with an accountant to prepare necessary tax returns
- preparing an accounting if necessary
- overseeing the orderly distribution of estate assets in compliance with the wishes of your loved one
- closing the estate
- collecting smaller estates by affidavit.
If you are named as Trustee in a Trust for someone who has died or become incapacitated, we can help you with the trust administration by:
- counseling you on the terms of the trust and your duties and responsibilities as trustee
- segregating trust assets from your property or others’ property
- compiling an inventory of the trust assets
- protecting and preserving the trust assets
- obtaining appraisals
and valuations of the trust assets
- paying the trust’s final obligations and working with an accountant to prepare necessary tax returns
- preparing accountings and other reports to the trust beneficiaries as needed
- overseeing the orderly distribution of trust assets in compliance with the wishes of your loved one.
What is "probate"? Probate is the process of legally administering a decedent’s estate. It involves having a Personal Representative (PR) appointed through the court to collect the decedent’s assets, pay the bills, pay any necessary taxes, and distribute the decedent’s property to the heirs. Most probates are “informal,” which means they are uncontested and there is no court hearing. However, all of the paperwork still goes through the court, with proper notices to the heirs. A “formal” probate may occur when someone contests the will and sometimes the court directs additional scrutiny with a “supervised” probate.
What’s wrong with probate? Nothing. People have many misconceptions about probate. As long as a living relative exists, the state is not going to take the decedent’s property. And, in Arizona, the probate process is straightforward and can almost always be completed in less than a year, and often in less than six months.
What property is included in a probate estate? The probate estate is made up of property held in an individual’s name, such as the decedent’s individual property and, if married, the one-half share of community property. The probate estate can consist of assets such as real property, cars, furniture, jewelry and other personal items, stocks and bonds, bank accounts, and other property that does not pass according to a beneficiary designation. Property that is generally not included in a probate estate includes property with a beneficiary designation, such as many life insurance policies and investment/retirement accounts, bank accounts with pay-on-death designations, assets titled jointly with others with right of survivorship, and assets titled in the name of a Trust.
What do "testate" and "intestate" mean? "Testate" simply means the decedent had a Will; "intestate" means there was no Will. The probate process is nearly identical for both testate and intestate estates.
What is a Personal Representative or Executor? The Personal Representative (PR) is the person appointed by the probate court to administer the Estate. Many states refer to a PR as an "Executor." If the decedent had a Will, the Personal Representative will be named in the Will. If not, the court will determine the PR based on Arizona law.
Who can become the Personal Representative? If a person dies without a Will, or if there is a dispute over who should be the PR, Arizona statutes govern the priority of appointment in the following order: (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 who is not a devisee, (5) other heirs of the decedent, (6) the Department of Veteran’s Affairs, if the decedent was a veteran, (7) any creditor of the decedent if at least 45 days have passed after death, and (8) the public fiduciary.
Do I have to take a class to be a PR? Yes, under Arizona law, the PR must take two short on-line training modules: "Introduction to Serving as a Non-Licensed Fiduciary" and "Welcome to Personal Representatives." The PR must also sign an "Order to PR" that acknowledges the PR’s duties and responsibilities.
What is the difference between an Heir, Devisee and Beneficiary? "Devisees" are the people or entities, such as charities, named in a Will to receive the decedent’s estate. Devisees may or may not be related to the decedent.
"Heirs" are the people entitled to receive the estate when there is no Will. Arizona statutes govern how property passes to heirs and, in almost all instances, the recipient will be related to decedent by blood, adoption or marriage.
"Beneficiaries" are commonly the people or entities, such as charities, named in a Trust to receive the decedent’s estate. Beneficiaries also refers to people named on assets such as life insurance policies and investment/retirement accounts, which pass directly to the beneficiaries without the need for probate whether or not a Trust exists; however, a person may name his or her Trust or Estate as the beneficiary. If an Estate is named, that asset will be part of the probate estate, and if a Trust is named, the asset will be part of the Trust estate. Beneficiaries may or may not be related to the decedent.
What is a Trustee? A Trustee or Successor Trustee is the person named in the decedent’s Trust to administer the Trust upon the decedent’s death or incapacity. A Trust is generally administered privately without court oversight; however, Trust litigation can occur where there are contested issues.
What will happen if somone dies without a Will or Living Trust? Arizona law governs who gets a decedent’s estate when someone dies without a Will or Living Trust. The law sets forth the circumstances under which certain people – such as spouses, children, parents, brothers or sisters, and other relatives – would be entitled to the estate. Only if there is no living relative would an estate go to the government.
What if the decedent’s estate is very small? In Arizona, a decedent’s heirs may be able to collect small estates without going through probate. Thirty days after the decedent’s death, heirs may be able to “collect by affidavit” personal property such as vehicles, bank accounts, debts, or stocks valued at $75,000 or less, minus liens and encumbrances. Six months after the decedent’s death, the heirs may be able to collect by affidavit any real property valued at $100,000 or less, minus liens and encumbrances. Additionally, at any time after a decedent’s death, a surviving spouse may be able to collect by affidavit unpaid wages up to $5,000.