FAQs
Q: If the decedent left any real estate valued at $100,000 or less, is there a small estate procedure that can be used to transfer this property so that a probate estate would not have to be opened?
Answer: Yes. In the case of real property, you have to wait six months after the date of death. This procedure is handled by a document called an Affidavit of Succession to Real Property, which can be prepared by Leary & Wence, and is filed with the Clerk's office. The value of the real estate may not exceed $75,000.
There is a filing fee and a separate fee for the certified copy of the affidavit that you will need to record. (The certified copy fee is dependent on the number of pages.) There is a recording fee in addition. This fee is subject to change. A certified death certificate and the original will (if there is one) must accompany the affidavit. For additional information, refer to Affidavit of Succession to Real Property A.R.S. §14-3971(E).
Q: If the decedent left any personal property that totals $75,000 or less, is there a small estate procedure that can be used to transfer this property so that a probate estate would not have to be opened?
Answer: Yes. This procedure is handled by a document called an Affidavit for Collection of Personal Property, which can be prepared by Leary & Wence. (It is not filed with a court). The entire value of the personal property owned by the decedent at death cannot exceed $75,000. An affidavit is presented to the person, business or agency holding the property owed to the decedent.
Personal property includes things such as wage claims, personal property, automobiles, bank accounts, stocks, brokerage accounts that were held in the decedent’s name. These are collectible by presenting an affidavit. For additional information, refer to Affidavit for Collection of Personal Property A.R.S.§ 14-3971(B).Q: What happens if I die without a will, and what happens if I die with a will?
Answer: In Arizona, if you die without a will, your assets will be divided among and distributed to your immediate family by “intestate succession.” This means that your entire estate, consisting of your separate property and your half of the community property, goes to your spouse if you do not have children, or if you have children and they are also the children of your spouse.
If you have children but only some of them are also your spouse's children, your spouse will receive one-half of your separate property and no interest in your half of the community property. That part of your estate which does not pass to your spouse goes to your children, parents or siblings. Since Arizona law will determine who gets your probate assets when you don’t have a will, it is quite possible that people may inherit your property contrary to your wishes. That’s why it’s a good idea to have a will.
In Arizona, if you die with a properly executed Will, the person is said to have died "testate," meaning that the person has a valid Will. The probate assets of the decedent pass to whoever is named in the Will.
Here is a link to the Arizona statutes describing the intestate share of the surviving spouse:
Q: What is a Pet Trust in Arizona?
Answer: In Arizona, it is lawful to create a trust specifically for the care of a domestic animal or pet after one’s death. Pet trusts have been created for the continued care of dogs, cats, horses, birds and other animals. While a person is still alive he or she can establish a trust and provide for care instructions. The trust can be funded before or at the pet owner’s death. Although not required, it is advisable to nominate the caregiver in the trust document. It is also advisable to obtain the consent of the person nominated as the caregiver.
The amount of money to fund the trust should be calculated by the current care costs of the animal and multiplied by the expected life of the designated animal(s). It is always better to err on the high side when estimating care costs and life expectancy. Any money in the trust at the time of the last animal’s death is returned to the heirs or beneficiaries of the original animal owner unless otherwise designated by the pet owner.
Leary & Wence, PC can handle the creation and operation of a pet trust in Arizona. We can also assist someone who has an interest in the care of the animal who believes that the appointed trustee is not taking adequate care of the animal. Sometimes this requires filing a petition with the local probate court.
Q: When should a person with a claim against a decedent present the claim in a probate proceeding?
Answer: When a person dies he or she may be leaving behind debts, obligations or possible liabilities to other persons. Claims may be held by creditors, contract holders, or even by tort plaintiffs. In Arizona, there is a fairly short time to present probate claims. A claim against an estate must be made or presented in writing within four (4) months after the date of the first publication of the estate’s notice to all possible creditors and claimants. This notice is usually published in a local newspaper in Phoenix, Scottsdale, or elsewhere in Arizona. The personal representative publishes the notice or directs his lawyer to do so.
The claim presented should be fairly detailed. It should describe the basis of the claim, the amount claimed, the name and address of the claimant; and if it is not yet due or it is secured by collateral, state the due date and/or describe the collateral securing the debt. Then it is up to the personal representative to accept or deny the claim. If he or she denies or rejects the claim, the claimant may have to litigate the claim.
The Scottsdale law firm of Leary & Wence, PC can handle the presentation and/or litigation of all types of probate claims against an Arizona estate. While our firm is based in the Phoenix area, we can handle claims in probate throughout Arizona. Our lawyers are also licensed in Colorado, Nebraska, and Arkansas.
Q: Who can serve as a Personal Representative of an Arizona Estate?
Answer: Unlike many states, Arizona restricts who may be appointed as a Personal Representative (“PR”) of informal probate of an estate. Arizona Revised Statute §14-3301 permits the following persons or entities to apply for a PR appointment:
The surviving spouse of the decedent;
And adult child;
A parent;
A brother or sister;
An heir;
A person named as PR in the will;
For nonresidents, any person listed above; or the PR appointed in the decedents’ domicile;
For veterans, the Department of Veterans’ Affairs;
A creditor of the estate, but only 45 days after the death of the decedent;
The public fiduciary, if none of the above are available.
In the event of a disagreement over who should be appointed PR, Arizona law provides the following priority for the appointment of a PR:
The person named in the will;
The surviving spouse of the decedent who is a devisee;
Other devisees of the decedent;
The surviving spouse of the decedent, even though not a devisee;
Other heirs of the decedent;
If the decedent was a veteran, the Department of Veterans’ Affairs;
Any creditor, if 45 days have passed since death;
The public fiduciary.
Q: What kind of "capacity" does a person have to have to make a will?
Answer: It must appear that at the time of making the will, [the testator] had a full understanding of the nature of the business in which [the testator] was engaged; a recollection of the property of which [the testator] intended to dispose of and the persons to whom [the testator] meant to give it, and the relative claims of the different persons who were or should have been the objects of [the testator's] bounty. Ritter, 114 Md.App. at 105, 689 A.2d 101 (quoting Sykes, supra, § 61, at 72); see also Phelps v. Goldberg, 270 Md. 694, 698, 313 A.2d 683 (1974); Webster, 268 Md. at 165-66, 299 A.2d 814; Sellers v. Qualls, 206 Md. 58, 66, 110 A.2d 73 (1954); Doyle v. Rody, 180 Md. 471, 475, 25 A.2d 457 (1942). Here is a discussion of some leading cases on the subject:
In the Davis case, the 82-year-old testatrix executed a will at a time when she had spoken about her dead siblings as if they were still alive. Moreover, she did not tell her attorney that the house in which she lived was part of her estate, and she made bequests constituting only a fraction of her wealth because she did not believe there would be any money left after those bequests.
On the morning after executing the will, the testatrix told one of the attesting witnesses that she was surprised to learn that she had made a will and asked to know what was in it. At trial, the physician who had cared for the testatrix for 30 years testified that the decedent was not of sound mind when she made the will, and "he doubted very much if she was at that time competent to make it." Davis, 94 Md. at 396, 50 A. 1037. Although two other medical experts who had observed the testatrix months after she executed the will testify that she did not seem to be impaired, the Court held that the testatrix was not competent when she made her will.
Moreover, as we observed, Tressler claimed that Doris understood what was being said to her, she could recognize the people close to her and could say their names, and she was "comprehensive, very comprehensive." Although Tressler was not specifically asked for an opinion as to the capacity, the facts about which she testified regarding Doris's interaction with people, her ability to comprehend, and her physical capabilities certainly supported the trial court's finding that Doris had the capacity to revoke her will.
Clearly, Doris needed round-the-clock care at home, and she had difficulty talking and getting around. Yet we cannot say that a stroke that leaves a person physically crippled necessarily renders that person incapable of possessing sufficient mental capacity to revoke a will. See Rogers v. Hickam, 30 Tenn.App. 504, 208 S.W.2d 34, 37 (1947). Nor is the inability to speak indicative of an inability to comprehend. See Webster, 268 Md. at 165, 299 A.2d 814 (and cases cited therein); 1 Bowe & Parker, supra, §§ 12.43-12.45, at 653-55; Albert W. Northrop & Robert Schmuhl, Decedents' Estates in Maryland § 4-4(d), at 131-42 (1994).
("Revocation [by a physical act] requires that the testator have a revoking intent and frame of mind (animus revocandi) simultaneously coincident with his physical act on the will document."). The capacity required to revoke a will is the same as the capacity required to make one. Preston, 149 Md. at 505, 132 A. 55; see Hunter, 154 Md. at 316, 141 A. 368; see also E.T. § 4-101 ("Any person may make a will if he is 18 years of age or older, and legally competent to make a will."). Indeed, making a will requires no greater capacity than that required to make a gift, "and it may be a very simple act." Mecutchen v. Gigous, 150 Md. 79, 86, 132 A. 425 (1926); see also Philip L. Sykes, Contest of Wills in Maryland § 61, at 72 n. 3 (1941).
We recently reiterated the standard for determining testamentary capacity:
It must appear that at the time of making the will, [the testator] had a full understanding of the nature of the business in which [the testator] was engaged; a recollection of the property of which [the testator] intended to dispose of and the persons to whom [the testator] meant to give it, and the relative claims of the different persons who were or should have been the objects of [the testator's] bounty.
Ritter, 114 Md.App. at 105, 689 A.2d 101 (emphasis in original) (quoting Sykes, supra, § 61, at 72); see also Phelps v. Goldberg, 270 Md. 694, 698, 313 A.2d 683 (1974); Webster, 268 Md. at 165-66, 299 A.2d 814; Sellers v. Qualls, 206 Md. 58, 66, 110 A.2d 73 (1954); Doyle v. Rody, 180 Md. 471, 475, 25 A.2d 457 (1942).
Q: What is a Trust, and where does it fit in within the probate process?
Answer: A trust is a separate legal entity created either during one’s lifetime or upon death by a person’s Will. A trust is like a corporation or limited liability company that is legally considered separate from the person that created it. Many times people create trusts as part of their overall estate plans. Other times people draft their Wills such that upon death a trust is created to control certain property after death.
A trust can own property just like a person or corporation can own property. A trust can earn income and usually must pay taxes like everyone else. Trusts can also be set up for charitable purposes, such as to hold money or property to be given away to charities after death.
One of the most common mistakes people make when creating trusts during their lifetime is they neglect to actually transfer the title to the property during the trust while they are still alive. This can cause problems after death as there may be disputes over what the trust actually owns and what it does not.
Under most circumstances, a person can create a trust to own real or personal property, and that person can still control the property by naming himself as the sole or controlling trustee during life. Then upon death, the person named as successor trustee takes control of the property of the trust and either manages it or disposes of it as directed by the original owner or trustee.
The person or persons creating the trust are called Settlor(s) or Trustor(s). The person in charge of the trust property is called the Trustee. If there are two or more Trustees they are called Co-Trustees. A person nominated to assume the role of trustee after a certain event, such as death or incapacity, is called Successor Trustee(s).
The person or persons who benefit from the trust are called Beneficiaries. Once the purposes of the trust are accomplished the trust usually terminates. Also, the person establishing the trust may designate a period of time or the occurrence of an event to trigger the termination of the existence of the trust.
Trusts and their administration can become difficult or complicated, especially when there is disagreement among beneficiaries and/or trustees. It is wise to consult legal counsel such as Leary & Wence, PC when trust issues arise.
Arizona law grants broad jurisdiction to the Superior courts in Arizona over all matters or proceedings concerning the internal affairs of trusts with some material connection to Arizona. Leary & Wence, PC, through its Scottsdale offices can help with all trust issues and problems in Arizona.
Q: What Are the Maxims of Equity?
Answer: Equitable maxims have been around for a long time. Here's some English bloke with his own take on them, courtesy of his YouTube video:
1. Equity will not suffer a wrong without a remedy.
2. Equity follows the law.
3. Where there is equal equity, the law shall prevail.
4. Where the equities are equal, the first in time shall prevail.
5. He who seeks equity must do equity.
6. He who comes into equity must come with clean hands.
7. Delay defeats equities.
8. Equality is equity.
9. Equity looks to the intent rather than the form.
10. Equity looks on that as done which ought to be done.
11. Equity imputes an intention to fulfill an obligation.
12. Equity acts in personam.