questions & answers

Question: My mother passed away. She does have a will and I was nominated as the executer and trustee. I am the sole beneficiary. She only has a bank account but when the account was setup nobody was on the account but her. no payable unpon death. What is required by the bank for me to access the account to begin paying for her expences? Her will did state that I shoud have immediate access without going through the courts.

Answer:

Probate is a legal process that is used to determine whether a will is a valid legal document, administer the estate (the property) of a person who has died (called the decedent)), and appoint a Personal Representative to settle the estate. There are different types of probate actions that must be followed depending upon factors such as the total value of the estate and whether the will is being challenged.

Most small estates can be settled with an informal probate or small estate affidavit. These are less expensive and easier ways to administer the decedent’s estate. The small estate settlement or affidavit process can be completed without the use of an attorney by filling out the forms provided by the Maricopa County Superior Court Self Service Center online.  The small estate process can be used by a person who meets all of the following requirements:

• is related to the decedent or has a legal interest in the decedent’s property, and
• the decedent had a will (or even if decedent did not have a will), and 
• the assessed value of the real property (land and permanent homes or buildings on the land) located in Arizona, less liens and encumbrances at the time of death, does not exceed $75,000, and
• it has been six months since the person died, and
• the total value of all personal property (cash, bank accounts, purchased items or objects including cars, jewelry, mobile homes, furniture, electronics) wherever it is located is $50,000 or less, and/or 
• the person wants to transfer the property without going through a court probate case.

The next step is to submit an affidavit (the forms are available from the Arizona Supreme Court, website listed above) that allows the person to claim personal property without going to probate court as long as the person meets the above requirements. If the decedent owned real property, there is a 6 month waiting period and the affidavit must be filed with the Court. (A.R.S. § 14-3971). This small estate exemption cannot be used until thirty days after the decedent's death, except in the case of the spouse of a decedent who seeks the decedent's compensation. If the conditions met above cannot be met (for example, the personal property exceeds $50,000 and/or the value of the real estate exceeds $75,000), than a probate action must be filed with the Court.