01-Feb-2013

 By Attorney Robert N. Sewell

I frequently have people ask me this question:  Do I need to probate the estate when my loved one had nearly nothing? 

 

The answer—like in nearly all legal questions is—it depends.  When an estate is small, Arizona will allow for mini-probates accomplished by an affidavit called a “Small Estate Affidavit.”   To qualify for probate by Small Estate Affidavit, the estate and the person signing the affidavit (“affiant”) must meet certain qualifications. There are two types of small estate affidavits:  (1) Real property, and (2) Personal property. 

 

Real Property Small Estate Affidavit

 

To transfer real property by Small Estate Affidavit the estate and affiant must meet these qualifications:

 

    1. The affiant must be legally entitled to the property.
    2. The value of all real  property, less liens and encumbrances, cannot exceed $75,000.00.
    3. There must be no probate application pending, or it must be over one year from the closing of an estate or discharge of the personal representative, or no personal representative has been appointed in the past year.
    4. Six months must have  passed from the decedent’s death.
    5. All funeral expenses, unsecured debt, and taxes must be paid.    

 

Personal Property Small Estate Affidavit

 

To transfer personal property by Small Estate Affidavit the estate and affiant must meet these qualifications:

 

      1. The affiant must be legally entitled to the property. 
      2. The value of all personal property, less liens and encumbrances, cannot exceed $50,000.00.
      3. There must be no probate application pending, or it must be over one year from the closing of an estate or discharge of the personal representative, or that no personal representative has been appointed in the past year.
      4. Thirty days must have passed from the decedent’s death. 

 

If you meet the above requirements, a full probate may not be necessary.  The best way to determine whether you qualify to avoid probate is to discuss the estate with a qualified attorney.  If you are more of a visual learner, please see the diagram below.