REAL PROPERTY SERVICES   |   Avoiding Probate

Can I avoid my property going through the probate process?

Many people want to explore ways to avoid probate. They are generally concerned with three things:

• The cost of probate

• The time involved in probating the assets (property) of an estate; and

• The fact that probate proceedings are public information.

There are several options for avoiding probate. These include:

» Transfer of property by affidavit;
» Titling property so that it transfers automatically without probate; and
» Living trusts.

Advance planning is necessary for the second or third options for avoiding probate.

Transfer of Property

» Arizona law allows for the transfer of property in small estates through an affidavit procedure. The availability of the procedure, among other things, depends largely on the size of the estate involved. The affidavit procedure is available for both real and personal property. For personal property, the affidavit procedure is not available until thirty days after the death of the decedent and for real property the affidavit procedure is not available until 6 months after the death of the decedent. The affidavit transferring any type of property must strictly comply with certain statutory requirements. Thompson Law Group, P.C. has assisted many clients with the preparation of affidavits transferring property in small estates.

Titling Property

» The second option requires the persons planning their estate to title their property so that it will transfer automatically to a designated beneficiary. Examples of a non-probate transfer would be
(i) a bank account with a pay on death (POD) designation;
(ii) a designated beneficiary in a life insurance policy is a non-probate transfer;
(iii) a designation of a beneficiary in a retirement plan; and (iv) securities (such as stock) with a designated beneficiary.
Each of the foregoing examples will avoid probate in Arizona, provided the Arizona statutory requirements are satisfied. The transfer of the property to the designated beneficiary occurs automatically as a matter of law. If the deceased has a will or trust, property that is titled in the name of the deceased with a properly designated beneficiary will not be an asset of the will or trust. The only requirement for transfer of the property is the presentation of a death certificate. The transfer of real property automatically upon death may be accomplished in Arizona by the execution of a Beneficiary Deed.

Living Trusts

» The third option for avoiding probate is a living trust, which has become a particularly popular method for avoiding probate. A living trust will avoid probate if, and only if, the property is transferred into the living trust before death. In the case of real property, the property must be transferred by a deed naming the trustee of the trust as the grantee. A transfer into or out of the living trust is a more complicated deed and care needs to be given to make the requisite disclosures pursuant to Arizona law. >Thompson Law Group, P.C. has prepared many deeds for clients who need to transfer real property into or out of their trust. Living trusts are useful vehicles for not only avoiding probate, but also for providing estate tax planning in larger estates.

Thompson Law Group, P.C. is committed to providing quality legal service at reasonable rates. We generally provide our documentation preparation services at a flat rate so that the fees are certain. If it is necessary to provide additional services, such as review additional documents, chain the title, etc., in order to prepare the necessary documents or cure title defects, we inform you of this expense prior to commencement of any work to avoid any confusion about necessary work to protect your transaction.

DISCLAIMER The information provided in this website is meant only as a general description of the current laws as of the date of the writing. It is not meant to be an exhaustive discussion of all the nuances of the law and is intended to be only an overview. Many issues may appear simpler than they are, and an individual should always contact an attorney to obtain a complete, accurate interpretation of the law given the individual’s particular circumstances. Thompson Law Group, P.C. makes no representations as to how the law would affect a particular situation and intends only to illustrate areas of concern and give general information. © 2019, Thompson Law Group, P.C.

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