FAQ

Probate and Trust Administration

A family member died in Arizona, but I live out of state. Where do I hire an attorney?


If your family member or loved one passed away while living in Arizona, there is a good possibility that their estate will be administered in Arizona. Accordingly, reaching out to an Arizona attorney is a good place to start. Our Trust & Probate attorneys regularly work with out-of-state individuals, and despite the distance, with the assistance of regular phone, video, and email conferences, are able to ensure that our clients are well informed every step of the way. In many circumstances, most if not all of the probate administration can be handled by your Arizona attorneys without requiring you to come to Arizona.




What is probate?


Probate is the process of legally passing assets from a deceased person to their heirs or devisees. Probates may occur with or without a will. The individual tasked with completing a probate is referred to as the “Personal Representative.” During the probate process, a probate court will supervise the Personal Representative’s administration of the estate.




When is a probate needed?


Probate may be required when the decedent has assets that did not automatically transfer upon their death. If the decedent’s real estate is valued at less than $100,000, and their personal property is valued at less than $75,000, a small estate affidavit may be available as an alternative to probate.




Who should initiate a probate?


If the decedent had a will, they may have already elected a Personal Representative in their will, in which case, the nominated Personal Representative will likely admit the will to probate. In instances where there is no will, there may be multiple individuals who can open a probate, depending on their respective relationships with the decedent, as well as the surrounding circumstances. Tiffany & Bosco P.A.’s Trust & Probate attorneys, once learning more about your specific circumstances, will be able to provide a tailored course of action and help you determine whether a probate is needed, and if so, who should initiate it.




What is required for a valid Will in the State of Arizona?


Generally, Arizona law requires valid paper wills to be in writing, signed, witnessed by two individuals, and notarized. Additionally, Arizona is one of a growing number of states that recognize electronic wills, which may be valid under certain circumstances. Arizona also recognizes holographic wills, which may still be valid without witnesses if they are written in the testator’s handwriting.




What is the difference between a will and a trust?


Wills and trusts are both helpful estate planning documents that determine how someone’s assets should be handled. Although wills and trust frequently serve different purposes, it is common for wills and trusts to work together to complete a comprehensive estate plan. One of the main differences between wills and trusts is when they take effect. A will is effective only after you die, whereas a Trust can be effective as soon as it is created.




What is the difference between a Personal Representative, Trustee, and Executor?


In Arizona, the individual responsible for carrying out the wishes of a decedent through the probate process is called a Personal Representative. In some other states, a Personal Representative is referred to as an “Executor” or “Executrix.” A Personal Representative must be appointed by the court in order to validly exercise authority. Once appointed, the Personal Representative owes fiduciary duties to the heirs, devisees, and even creditors of the decedent.

A Trustee is the individual or entity responsible for carrying out the terms of a trust. Similar to a Personal Representative, a Trustee also owes fiduciary duties, which in the instance of a trust, include the trust beneficiaries.




How do I get information about a Will or a Trust?


If you are named in a will or a trust, you are likely entitled to receive a copy or relevant portions of the document so that you can ensure your rights are protected. If someone is refusing to provide you with a copy of a decedent’s will or trust, this could be an early sign of improper administration. You should consult an attorney about whether you are entitled to receive the document and how to go about ensuring that you do ultimately receive the information to which you are entitled.




As the Personal Representative, do I have to pay creditors?


When a person dies, his or her estate is responsible for settling debts. This is typically done by liquidating the estate assets. Arizona law provides specific deadlines which creditors must be notified in writing of the decedent’s death, and by which creditors may attempt to collect what they are owed. If you are serving, or seeking to serve, as Personal Representative for someone’s estate, it is important that you strictly adhere to the pertinent creditor’s statutes.




If a family member dies, and I am reliant on them for support, am I entitled to anything?


When someone dies with or without a will, there are certain statutory allowances and exemptions intended to help provide for the decedent’s surviving spouse and children. If applicable, these statutory allowances – the homestead allowance, family allowance, and exempt property allowance - have the highest level of priority, even above paying creditor claims. However, if the surviving spouse or children receive more than the statutory allowance or exemption amounts through some other mechanism, the statutory allowances and exemptions may not be applicable.




What is a Beneficiary Deed?


A beneficiary deed, sometimes referred to as a “Transfer on Death Deed,” allows real property to be automatically transferred to a new owner when the current owner dies, without the need to go through probate.





Probate & Trust Litigation

What is undue influence?


Undue influence exists when someone is pressured to make changes to their estate plan or their assets, such that their true wishes and intent are no longer reflected. Under Arizona law, a document executed as a result of undue influence, can be invalidated. While not all influence is necessarily problematic, Arizona courts have established certain criteria for evaluating whether influence rises to the level of being undue, and therefore, actionable. Those factors include:

  • whether the decedent was susceptible to undue influence;
  • whether the alleged influencer made any fraudulent representations
  • whether the execution of a document such as a will or deed was the result of hasty action;
  • whether the new documents or changes were concealed from others;
  • whether the individual(s) benefited by the change were active in securing the drafting and execution of estate planning documents;
  • whether the new documents are consistent with a decedent’s prior plans;
  • whether the new documents are consistent with the decedent’s circumstances, attitudes and family relationships; and
  • whether the decedent and person benefitted had a confidential relationship.




What is Financial Exploitation of a Vulnerable Adult?


Financial exploitation of a vulnerable adult occurs when a trusted individual misappropriates the assets of a vulnerable adult for the exploiter’s own personal gain. Financial exploitation can take many forms including family, friends, and caregivers improperly using a vulnerable adult’s assets for their own personal use. There are harsh consequences for individuals who financially exploit vulnerable adults, including disinheritance of the exploiter. For more information about how to prevent and detect financial exploitation, click here.





Guardianships & Conservatorships

When is a Guardianship or Conservatorship needed?


When an individual does not have the capacity to make responsible decisions relating to their personal matters, including healthcare and medical decisions, they may benefit from the appointment of a Guardian. A Conservator is similar to a Guardian; however, instead of helping with personal and medical decisions, a Conservator helps manage and protect the assets and finances, of someone who does not have the capacity to do so themselves.




What are the differences between Power of Attorney and a Guardianship or Conservatorship?


A power of attorney is a document that permits someone of your choosing to make decisions on your behalf. The scope and complexity of Powers of Attorney can vary greatly, depending on the specific terms of the document. For example, some Powers of Attorney allow an agent to make decisions only if you are found to be incapacitated. Others are effective immediately upon execution. Certain Powers of Attorney may be limited to only medical decisions, or to only financial decisions. It is a good idea to have a Power of Attorney prepared in the event you ever become incapacitated.

If, however, you or a loved one ever become incapacitated, and a Power of Attorney has not been previously executed, a Guardianship or Conservatorship may be needed. In some instances, even when a Power of Attorney does exist, a Guardianship or Conservatorship may still be needed. Guardianships and Conservatorships must be obtained through the court system, and if granted, the Guardian and/or Conservator will be given great authority and responsibility to act on behalf of the incapacitated individual. A Guardian and Conservator may be a family member, friend, or even a professional fiduciary.




What is a professional fiduciary?


A professional fiduciary is a non-family member who serves as a guardian, conservator, trustee, or personal representative professionally for a fee. Trust companies and other financial institutions who serve as a professional fiduciary often charge a percentage of the total estate or trust value for their services. The Arizona Supreme Court also licenses individuals to act as a private fiduciary for a fee, which is generally charged on an hourly basis. Private fiduciaries must adhere to rigorous standards to remain licensed and authorized to act as a fiduciary in this state.