Arizona Probate - Small Estate Affidavits

Thomas J Bouman

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Probate Attorney - Tucson, AZ

Contributor Level 9

Posted about 4 years ago. Applies to Arizona, 3 helpful votes

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Small Estate Transfers by Affidavit under ARS 14-3971

Under Arizona Revised Statute 14-3971, some assets otherwise subject to probate in Arizona may be transferred without a probate proceeding. In order to qualify, both of the following must be true:

  1. The total value of decedent's personal property (money, car, things) subject to probate is less than $50,000.

  2. The total value of decedent's interest in real property (home) subject to probate is less than $75,000. The value of decedent's interest is based on the tax assessor value minus the outstanding debt.

Transfer of Personal Property

If the estate qualifies, the person entitled to receive a personal property item (by will or intestacy statute) may submit an affidavit under ARS 14-3971(B) to the holder of the property. Examples: to collect a bank account, car, or firearm) The affidavit may not be presented until 30 days after the decedent's date of death. The affidavit must state that no petition or application for appointment of a personal representative (probate) is pending in any state or more than one year has passed since the filing of a probate closing statement.

The Arizona Department of Motor Vehicles has its own affidavit form available on its website. For other property, consult an estate attorney. A typical layer fee is $250 to $750.

Transfer of Real Property

If the estate qualifies, the person entitled to receive an interest in real property (by will or intestacy statute) may file an affidavit under ARS 14-3971(E) with the probate court in the county where the decedent resided (or if from outside Arizona, then in the county where the property is located). The affidavit may not be filed until 6 months after the decedent's date of death. The affidavit must state that no petition or application for appointment of a personal representative (probate) is pending in any state or more than one year has passed since the filing if a probate closing statement. Another critical requirement is that all funeral expenses, expenses of last illness, unsecured debts, and death taxes have been paid. The affidavit is filed with a certified copy of the death certificate. The probate registrar will then issue a certified copy of the affidavit. Then the affidavit must be recorded, along with another certified copy of the death certificate, with the county recorder where the property is located.

The probate court will charge a filing fee of several hundred dollars and the county recorder will charge a nominal recording fee. In addition, a typical lawyer fee is $750 to $1,000.

Transferor is Protected from Liability

Under ARS 14-3972, a person or financial institution who transfers property in reliance on an affidavit is protected from liability.

Drawbacks

In some cases, an informal probate may be preferred in order to strengthen the validity of the transfer. Title companies may prefer to see a transfer by deed of distribution (probate) than a small estate affidavit when researching a property's history. Also, since the real property affidavit cannot be filed for six months after date of death, it may be faster to use an informal probate action instead. A typical lawyer fee for informal probate is $2,500 (minimum) plus costs.

Additional Resources

Bouman Law Firm website

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