PROBATE AND THE REALTOR

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1 PROBATE AND THE REALTOR Tuesday, November 4, :30 p.m. 1:15 p.m. With: Equity Title 9949 W. Bell Road Sun City, AZ SPEAKERS: Christopher J. Charles, Esq. and James T. Rayburn, Esq. CHRISTOPHER J. CHARLES, PROVIDENT LAW, PLLC : Christopher Charles is a State Bar Certified Real Estate Specialist and a former Broker Hotline Attorney for the Arizona Association of REALTORS (the AAR ). He has an "AV Preeminent" rating by the Martindale-Hubbell Peer Review Ratings system, which connotes the highest possible rating in both legal ability and ethical standards. Mr. Charles is an Arbitrator and Mediator for the AAR regarding real estate disputes; he serves on the State Bar of Arizona s Civil Jury Instructions Committee where he helped draft the Agency Instructions, Nuisance Instructions, and the Residential Landlord/Tenant Eviction Jury Instructions. Mr. Charles is a licensed real estate instructor and he teaches continuing education classes at the Arizona School of Real Estate and Business. For a list of upcoming speaking engagements, please visit He can be reached at or at JAMES T. RAYBURN, LAW OFFICES OF JAMES T. RAYBURN: Jim Rayburn is an attorney in private practice in Scottsdale, Arizona. Before forming his own firm in 2007, he had more than thirty years of legal experience representing financial services clients, including Citigroup and Bank of America. With a broad background in business, banking and real estate law, his practice is now focused on estate planning, probate and trust law. A graduate of UCLA and Loyola Law School in Los Angeles, he is admitted to practice in Arizona and California, along with federal District Courts in both states. Mr. Rayburn has an extensive record of community involvement and service to those less fortunate and otherwise unrepresented. Active as a volunteer attorney with the Probate Lawyers Assistance Project of the Maricopa County Bar Association, he received that program s Attorney of the Year Award for Mr. Rayburn helps clients avoid or reduce the cost of administering a probate estate, and also represents those whose rights as beneficiaries are not recognized or protected. Legal services can include wills, living trusts, powers of attorney, beneficiary deeds, living wills and asset title restructurings. Snowbird clients receive advice concerning appropriate titling of the second home and representation when an ancillary probate is required. Other probate court matters handled include creation of guardianships and conservatorships, financial exploitation claims and claims against misbehaving fiduciaries. Mr. Rayburn can be contacted at (602) or at 1

2 I. WHY IS UNDERSTANDING PROBATE IMPORTANT TO ME AS A REALTOR? A. Real estate is usually a significant, if not the largest component of one s assets. B. Probate is a powerful tool to convey real estate. B. It is estimated that right now there is over 6 trillion in real estate assets in the U.S. Probate Courts. C. At any given time there are more than 25,000 pending probate cases of all kinds in Maricopa County. E. A huge segment of our population is aging with the baby boomer generation. 1. Baby boomers were born between , which equates to current ages of 50 to Average life expectancy is around When an individual passes away, his or her real estate assets may or may not be required to go through the probate process in Arizona s probate court. The determination of whether probate is needed is typically dependent on how the real property was titled prior to death and what types of assets were left by the decedent. F. 80% of probate cases contain real property. II. PROBATE BASICS A. What is probate? 1. The root of the word probate is provar which in Latin means to prove. Historically a Court needed to ascertain whether a Will is really the will of the decedent - i.e. proved to be authentic. 2. Probate has since taken on a wider meaning. It has become synonymous with estate administration after death in Arizona. Both the estate of a person dying with a will (dying testate ), as well as the estate of a person dying without a will (dying intestate ), are administered in a court proceeding. Estate administration today is the legal process resulting in the transfer of the estate assets to the decedent s heirs. 3. For the purpose of this discussion, the term probate will be used 2

3 with reference to an application or petition to the probate court for the appointment of a personal representative for the administration of a decedent s estate. 4. Probate takes place in the probate court of the county of the decedent s last residence. a) For most Arizona matters you will deal with the Probate and Mental Health Division of the Maricopa County Superior Court. b) Nearly all probate matters are handled by the Probate Registrar, located in the downtown Phoenix courthouse, or by Maricopa County Superior Court Commissioners, located in each Superior Court location. c) Maricopa County Superior Courts are located in downtown Phoenix, Northeast Phoenix, Mesa and Surprise. B. When is a probate required? 1. Generally, when a person dies with assets titled in his or her sole name, a probate proceeding MAY be required. This depends upon the nature and value of the assets that comprise the estate. 2. WARNING: Many are misled about the need for a probate, as uninformed, but well meaning, persons commonly advise that You need a probate. These may include bank tellers, relatives, friends, insurance companies, accountants and even some attorneys. 3. EXCEPTION: Transfer of Title to Small Estates Arizona law permits, by the use of affidavits meeting statutory requirements, transfers of title or payments to those entitled to receive property of the estate if the total value of property in the estate is (1) personal property with a date of death net value of not more than $75,000.00, or (2) real property with a date of death net value of not more than $100, C. THE PROBATE PROCESS GETTING STARTED 1. Types of Probates a) FORMAL Required when the decedent died more than two years ago, or when there are issues concerning the priority or qualifications of the person seeking to be personal representative, or when the original will can t be located, or when other disputes exist. There is direct Court involvement, at least to begin the case: (1) The case is initiated by filing with the court a Petition for Formal Probate of Will and Appointment as Personal Representative (or, if no will, a Petition for Adjudication of Intestacy, Determination of Heirs, and Appointment of Personal Representative). Along with the Petition and payment of the required filing fee, additional documents are required, along with the original will where there is one. 3

4 (2) A court hearing before a Superior Court Commissioner is scheduled and advance notice of the hearing date and place must be given to all interested parties, which include all devisees and heirs. (3) Any objections to the appointment of the Petitioner as Personal Representative or to admission of the will to probate must be made in a responsive pleading. (4) A court hearing is held and, if the Petition is granted, the Petitioner is appointed Personal Representative, effective upon submitting proof of completion of training, proof of a bond when required, and filing a written acceptance of his or her duties. (5) When all conditions have been satisfied, the Court Clerk will issue Letters of Personal Representative, and certified copies can be purchased, which are used in dealing with third parties, such as banks, during the administration of the estate. b) INFORMAL Less complicated probate proceeding which does not require advance notice or a Court hearing and can be utilized in most cases, with less formality, time and expense to initiate: (1) the case is started by submitting an Application for Informal Probate of Will and Appointment of Personal Representative (or, if no will, Application for Informal Appointment of Personal Representative (Intestate Estate) to the Probate Registrar, along with the original will, if applicable, and other required documents. (2) Within 72 hours, the Registrar will pass judgment on the Application and the Court will notify the Applicant of the decision. If approved, the Registrar s Acceptance and an Informal Appointment of Personal Representative will be filed by the Court and will be effective only when any required bond is posted, proof of completion of Personal Representative training is filed, and an Acceptance of Appointment as Personal Representative has been signed and filed. (3) When all conditions have been met, the Court Clerk will issue Letters of Personal Representative, for use in the administration of the estate. (4) Within 30 days the Personal Representative must send Notice of Informal Appointment of Personal Representative to all interested parties, who then have four months to contest the informal probate by filing a formal testacy proceeding. D. ADMINISTRATION AFTER APPOINTMENT 1. Whether filed as a formal or informal probate proceeding, the Probate Code requires a Personal Representative to timely complete statutorily required actions. The Probate Division monitors compliance with time requirements to ensure that statutory time frames are met. 2. In the absence of problems, conflicts or disputes, it is generally not necessary to appear in court during the administration of a probate estate. The Arizona Probate Code and Probate Court Rules are designed to minimize court involvement. The Personal Representative has full power to administer the estate. Normally, the Court gets directly and actively involved only when an interested person files a petition with the court regarding a concern or dispute over the estate administration, or when the Personal Representative is unsure about how to proceed and petitions the court for instruction. 4

5 3. After appointment by the Court, the work of the Personal Representative always includes: a) Collecting the Assets Bank accounts and other assets need to be located and retitled into the estate s name. b) Creditors Notice to Creditors must be filed with the court, sent to known creditors of the decedent, and published in a newspaper of general circulation for three consecutive weeks. Claims against the estate must be submitted within four months of first publication, or they will be barred. The Personal Representative reviews each claim and decides whether to approve or reject it or reach a settlement. Timely and approved claims should be paid. c) Inventory and Appraisement Within ninety days of appointment, the Personal Representative must prepare a statement of the assets, including encumbrances, and their value. A copy must be sent to all interested parties. d) Distribution of Assets to those entitled to receive them, with title to real property transferred by a deed of distribution. e) Final Accounting Before closing the estate, the Personal Representative must prepare and send to all interested parties a report of the estate s property, liabilities, receipts and disbursements. f) Closing the Estate After paying the claims, distributing the assets and providing a final accounting, the Personal Representative may close the estate either formally, by filing a petition for an order of complete settlement, or informally by filing a closing statement. III. SMALL ESTATES A. INTRODUCTION: A decedent s estate may be relatively small, without an estate that requires a probate administration. This may be due to a lack of assets of any significant value, or because title to most property owned by the decedent was held in a way that permitted passage at death to others by non-probate transfers, such as to a surviving joint tenant. B. NO ADMINISTRATION REQUIRED If the decedent died with only personal property of modest value and cash presenting no title transfer problems, the Probate Code provides that the property devolves, or passes on, to the decedent s successors, who can divide the property without administration, but subject to any creditors claims. C. COLLECTION OF WAGES BY AFFIDAVIT Before a probate proceeding is initiated, a surviving spouse can collect up to $5, from the employer that owed wages, salary or other compensation for personal services of the decedent. This is done by presentation of an affidavit that meets statutory requirements, but is not required to be filed with the court. D. PERSONAL PROPERTY AFFIDAVIT Personal property titled in the decedent s name can be collected by presentation of an affidavit that states: 1) Thirty days have elapsed since the decedent s death; 5

6 2) No probate proceeding has been initiated, or the personal representative was discharged over a year ago, and the value of all personal property, less liens and encumbrances, does not exceed $75,000.00; 3) The claiming successor is entitled to the property. E. REAL PROPERTY AFFIDAVIT Real property titled in the decedent s name can be transferred to a person claiming as successor in interest through the use of an affidavit process that requires the affidavit to be submitted to the Probate Court for review and approval by the Probate Registrar, filed with the Court and then recorded where the property is located. The affidavit must state: 1) Six months have elapsed since the decedent s death; 2) No probate proceeding has been started, or the personal representative was discharged over a year ago, and the value of all real property, less liens and encumbrances, either as of the date of death or as of the year in which the affidavit is signed, is not more than $100,000.00; 3) Funeral expenses, last illness expenses and unsecured debts of the decedent have been paid; 4) The person or persons signing the affidavit are entitled to the property; 5) No other person has a right to the decedent s interest in the property; 6) No federal estate tax is due on the decedent s estate. F. SUMMARY ADMINISTRATIIVE PROCEDURE After a probate has been initiated, if the Personal Representative discovers that the net value of the entire estate is of very limited value, the Probate Code authorizes the distribution of all assets and closing of the estate, without the need for giving notice to creditors. IV. DOES PROBATE APPLY TO THE REAL ESTATE I WANT TO SELL? A. No Probate Required 1. Real estate titled as Joint tenancy with right of survivorship a) Passes to the surviving joint tenant(s) without probate. 2. Real estate titled as Community Property with right of survivorship a) Passes to the surviving spouse without probate. 3. Real estate held in Trust a) A trust is an estate planning tool which names a Trustee to manage one s assets during the Trustor s lifetime. Upon the Trustor s death, the trust agreement specifies a Successor Trustee to step into the original Trustee s shoes, to manage 6

7 and distribute the trust income and assets. Assets transferred to the trust during the Trustor s life will not be subject to a probate. b) The trust must be valid. c) Real estate must be titled in the name of the trust or trustee. 4. Beneficiary Deeds. a) Must be recorded with the County Recorder prior to death. b) The beneficiaries must survive the decedent. B. Probate needed. 1. Real property owned by an individual. 2. Jointly held real property where there is no surviving owner. right of survivorship. a) Joint Tenancy deeds and Community Property deeds with the 3. Property held in a business entity (such as a limited liability company) where the decedent s ownership interest has not been assigned to a trust. IV. NOW THAT I KNOW IF PROBATE APPLIES OR NOT, WHAT ARE THE NEXT STEPS? A. Real estate deeded as Joint tenancy with right of survivorship. 1. If there is a surviving joint tenant, an Affidavit of Death of Joint Tenant will need to be filed with the county recorder so the full ownership interest of the property can be conveyed upon a sale by the surviving joint tenant(s). 2. If there is not a surviving joint tenant, then use: a) Arizona s Small Estate Affidavit if the decedent s estate fits the criteria. b) Formal or Informal Probate. B. Real estate deeded as Community Property with right of survivorship. 1. If there is a surviving spouse, a death certificate will need to be filed with the county recorder so the full ownership interest of the property can be conveyed upon a sale by the surviving spouse. 7

8 2. If there is not a surviving spouse, then use: a) Arizona s Small Estate Affidavit if the decedent s estate fits the criteria. b) Formal or Informal Probate. 3. Real estate held in Trust. a) A death certificate of the Trustee will need to be filed with the county recorder so the full ownership interest of the property can be conveyed upon a sale by the successor trustee. b) Note if there are multiple owners, or both spouses are deceased, then multiple affidavits may be needed. 3. Beneficiary Deed. a) A death certificate will need to be filed with the County Recorder so the title can be vested in the named beneficiaries. b) If one or more of a group of beneficiaries are deceased, then multiple affidavits may be needed. V. WHEN SHOULD AN ATTORNEY BE CONSULTED? A. Discuss with your broker what advice you can provide under your license and insurance coverage. You want to avoid inadvertently practicing law. B. Any time you get are unsure. C. All legal heirs are not cooperating. D. If you cannot locate a decedent s documents. E. Formal or informal probate. VI. HOW DO I OBTAIN PROBATE REAL ESTATE LISTINGS? A. Knowledge is king - An understanding of what real property assets are subject to probate and of the process involved in the probate of a decedent s estate should be useful in interacting with personal representatives and discussing listing of a real property they need to sell as part of their administrative duties. B. Networking - Networking and maintaining regular contact with personal representative clients, estate planning attorneys and financial advisors. 8

9 C. Referrals - Ask clients and those in your sphere of influence that are involved in probate proceedings to refer you. C. Court Records Probate cases are public record and most documents filed in a case can be examined by a visit to a courthouse. A search on the Maricopa County Superior Court s website by decedent s name can confirm the existence of a probate case, identify the Personal Representative and attorney for the estate, and provide information about real estate subject to the probate proceeding. Copies of documents filed in the case can be obtained at the Clerk s office in each courthouse. VII. SPECIAL SITUATIONS A. What happens if there is a mortgage or a deed of trust on the property? 1. Triggering clauses generally call for the full balance to be due in full. 2. Do not notify the lender! B. What if the property is located in a community with an HOA? 1. Pay the dues! D. What if the decedent used a will that calls for a trust to be established upon death? 1. Probate will likely be necessary. D. What if the person inheriting is a minor (under age 18). 1. Probate, plus establishment of a conservatorship. E. What if I know a client is going to use a Small Estate Affidavit even when the requirements cannot be met? VIII. HOW TO AVOID PROBATE A. Joint Tenancy with Right of Survivorship. B. Community Property with Right of Survivorship. C. Beneficiary Deeds. D. Utilize a Living Trust. IX. THE END 9

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