Steps After a Loved One Dies 

There are several steps to take after death. The following steps should be taken as soon as possible after someone dies (in no particular order):

• Take care of any dependents or pets.
• Determine if the person is an organ donor.
• Locate Will/Trust and other important documents.
• Locate electronics such as phones and computers.
• Contact people who should know about the death.
• Obtain (5-7) certified copies of the death certificate.
• Determine funeral arrangements.
• Create a list of assets and include proof of ownership (deed, title, etc)
• Secure all property.
• Forward the mail with the Post Office.
• Create a list of all debts and monthly services.
• Terminate unnecessary expenses.
• Contact all insurance companies and verify adequate insurance.
• Notify social security if funeral home did not.
• Keep a record of any expenses you have with proof of payment.
• Contact decedent’s CPA or attorney.
• Identify and list social media and email accounts
• Register on Deceased Do Not Contact Junk Mail Website

What is probate?
Probate is a court process to transfer the decedent’s assets (which are titled in their name) to their intended beneficiary. Essentially, probate refers to a method by which a deceased person’s property is administered and processed through the court system after they die. The probate court appoints a “personal representative” (also known as an executor or administrator in other states) who then has court authority to access bank and investment accounts, sell real estate, pay creditors, and to distribute the estate assets in accordance with the Will or intestate succession law (your family members).

Normally, if a person who dies (aka “decedent”) owns real estate in their own name, a probate is needed to transfer the property to the decedent’s beneficiaries. Often, to avoid probate, people execute a “beneficiary deed,” or hold the property in trust, or own it jointly with rights of survivorship. But without these extra steps, property directly owned by a decedent can only be transferred by going through the probate process. And this makes sense: If the decedent owned property in their name only, someone else cannot sign their name to transfer the property’s ownership unless they have some type of authority. In the probate context, that “authority” comes from being a personal representative of an estate. As a result, the Personal Representative will sign on behalf of the estate: Jane Doe, Personal Representative for the Estate of John Doe.

How do you know if you need to go through probate?

You will likely need to go through probate if any of these happen:

A bank, title company, lawyer, investment institution, insurance company or other third party in control of an asset says you need:

Letters of appointment

Letters of administration

Letters of executor

Letters

Appointment as personal representative; or anything similar to the above.

How do you determine the ownership of an asset?

The initial step in the administration of a probate estate is the identification of assets that may require probate. This process initiates by determining which assets fall under the jurisdiction of the probate court and which ones pass outside of the probate procedure. Every asset belonging to the decedent ultimately falls into one of these two categories. The pivotal aspect of this process revolves around confirming the “ownership” or “title” of each asset. This meticulous examination ensures a precise understanding of the property’s owner.

To accomplish this, it becomes crucial to gather pertinent documents and thoroughly scrutinize each ownership document for clarity:

For bank accounts, obtaining the most recent bank statement or acquiring the signature card is essential.

In the case of real estate, securing the most recent deed, often referred to as a “vesting deed,” is paramount. Researching the County Assessor Records online.

With life insurance, it is imperative to gather the most recent statement, the policy documentation, and beneficiary designations.

Vehicle titles need to be examined for co-owners and the wording “and/or”

Each asset possesses a corresponding document that unequivocally specifies its owner. Only after every asset has a corresponding document establishing ownership and potentially a beneficiary designations. If there is a beneficiary designation on any asset, that asset is likely to transfer to the beneficiary outside of the probate process.

What is the general order of priority for someone to serve as Personal Representative?

A. Whether the proceedings are formal or informal, persons who are not disqualified have priority for appointment in the following order:

1. The person with priority as determined by a probated will including a person nominated by a power conferred in a will.

2. The surviving spouse of the decedent who is a devisee of the decedent.

3. Other devisees of the decedent.

4. The surviving spouse of the decedent.

5. Other heirs of the decedent.

6. If the decedent was a veteran or the spouse or child of a veteran, the department of veterans’ services.

7. Forty-five days after the death of the decedent, any creditor, except a funeral director or funeral establishment owner who has control of the decedent’s remains.

8. The public fiduciary.

Who has the “right” or “priority” to be appointed as the Personal Representative if there is no Will?

When someone dies without a valid Last Will and Testament, we look to the Arizona law to see who has “priority” to be appointed as the Personal Representative; and, whether they can act without bond. Those are two separate issues: priority and bond.

The law A.R.S. 14-3203 allows biological children (heirs) to act if there is no Will and no spouse, but there is no priority (such as the eldest is appointed). As a result, your siblings are giving up their right and consenting to you to be the Personal Representative to act without Bond. All biological or adopted children have an equal right to be appointed. If they do not renounce their equal right, we will need to apply to the Court and an evidentiary hearing will be set probably a few months out to determine who will be appointed. This will result in additional attorney fees and delay.

Bond is a type of insurance policy that the Personal Representative will be required to obtain, which will be a few thousand-dollar expense to the Estate and probably take a week or two to obtain. The Personal Representative is acting as a fiduciary, meaning they must account for all the money in the Estate to the beneficiaries. Essentially, as a fiduciary, you are always required to act in their best interest.

What is formal vs informal probate?

There is not a “type” of probate that is informal, and another that is formal. There are two ways to initiate or start a probate proceeding: 1) formal and 2) informal.

If informal appointment is not available, or if the applicant/petitioner chooses, the appointment can be pursued in formal proceedings. The chief differences are:

1. The formal petition goes before a judicial officer rather than the registrar. This causes a delay of approximately 5 weeks.
2. Notice is given of a formal petition before the hearing, while notice of informal appointment is given after appointment.
3. The time for a disgruntled heir or devisee to respond is shorter in a formal proceeding.
4. The appointment is delayed until the court hearing — though of course the judge (or the registrar) can appoint a special administrator during the notice period.
5. In a formal proceeding, the court can (but is not required to) also determine the heirs and/or the validity of a purported will

Once the Personal Representative is appointed, it does not matter whether the initiation of the probate was formal or informal.

There are a list of reasons why a formal probate proceeding might be appropriate, but this specific topic should be discussed with an attorney. It has nothing to do with the value of the Decedent’s assets.

PROBATE

DUTIES OF THE PERSONAL REPRESENTATIVE

      The duties of the Personal Representative are found in Chapter 3, Title 14 of the Arizona Revised Statutes (from now on called “A.R.S.”). You are responsible for knowing and doing your duties according to these statutes. Some of the duties are:

1. GATHER, CONTROL AND MANAGE ESTATE ASSETS

As Personal Representative, you have the duty to gather and control all assets that belonged to the decedent (the person who has died) at the time of his or her death. After the valid debts and expenses are paid, you have the duty to distribute any remaining assets according to the decedent’s Will or, if there is no Will, to the intestate heirs of the decedent. As Personal Representative, you have the authority to manage the estate assets, but you must manage the estate assets for the benefit of those interested in the estate.

2. FIDUCIARY DUTIES

As Personal Representative, you are a fiduciary. This means you have a legal duty of fairness and impartiality to the beneficiaries and the creditors of the estate.  You must be cautious and prudent in dealing with estate assets. As Personal Representative, the estate assets do not belong to you and must never be used for your benefit or mixed with your assets or anyone else’s assets. Arizona law prohibits a Personal Representative from participating in transactions that are a conflict of interest between you, as Personal Representative, and you as an individual. Other than receiving reasonable compensation for your services as Personal Representative, you may not profit from dealing with estate assets.

3. PROVIDE NOTICE OF APPOINTMENT

Within thirty (30) days after your Letters of Personal Representative are issued, you must mail notice of your appointment to the Arizona Department of Revenue and to the heirs and devisees whose addresses are reasonably available to you.  If your appointment is made in a formal proceeding, you need not give notice to those persons previously noticed of a formal appointment proceeding.  See A.R.S. §14-3705.

4. PROVIDE NOTICE OF ADMISSION OF WILL TO PROBATE

Within thirty (30) days of the admission of the Will to informal probate, you must give written notice to all heirs and devisees of the Admission of the Will to probate, together with a copy of the Will.  You must notify the heirs that they have four (4) months to contest the probate. See A.R.S. §14-3306.

5. MAIL COPIES OF THIS ORDER TO PERSONAL REPRESENTATIVE

Within thirty (30) days after your Letters of Personal Representative are issued, you must mail a copy of this Order to Personal Representative and Acknowledgment and Information to Heirs and Devisees to all the heirs and devisees of the estate and to any other persons who have filed a demand for notice.

6. FILE PROOF OF COMPLIANCE

Within forty-five (45) days of your Letters of Personal Representative are issued, you must file with the Court a notarized statement swearing that a copy of this Order was mailed to each devisee, to each heir in intestate (no will) estates, and to any other persons who have filed a demand for notice.

7. PUBLISH NOTICE

Unless a predecessor personal representative already has fulfilled this duty or you were appointed more than two years after the decedent’s date of death, you must publish a notice once a week for three (3) consecutive weeks in Mohave County in a newspaper of general circulation that announces your appointment as Personal Representative and tells creditors of the estate that, unless they present their claims against the estate within the prescribed time limit, the claims will not be paid. In addition, you must mail a similar notice to all persons you know are creditors of the Estate.   See A.R.S. §14-3801.

8. PROTECT ASSETS

You must immediately find, identify, and take possession of the estate assets and make proper arrangements to protect them. See A.R.S. §14-3709. All property must be retitled to show ownership in the name of the estate – such as “Estate of (decedent’s name), by (your name) as Personal Representative.” Do not put the estate assets into your name, anyone else’s name, joint accounts, trust accounts (“in trust for”), or payable on death (“POD”) accounts. Do not list yourself or any other person as joint owner or beneficiary on any bank accounts or other assets belonging to the estate. Do not mix any estate assets with your own assets or anyone else’s assets.

If your authority as Personal Representative has been limited by the Court, you must promptly protect the estate assets as ordered and file a Proof of Restricted Assets with the Court. You may not sell, encumber, distribute, withdraw or otherwise transfer restricted assets without first obtaining permission from the Court.

9. DETERMINE STATUTORY ALLOWANCES

It is your responsibility to determine whether any individuals are entitled to statutory allowances under A.R.S. §§14-2402, -2403, and -2404. Statutory allowances include a homestead allowance, exempt property allowance, and a family allowance.

10. INVENTORY ASSETS

Unless a predecessor personal representative already has fulfilled this duty, within 90 days after your Letter of Personal Representative are issued, you must prepare an inventory or list of the decedent’s probate assets and their values as of the date of death.  See A.R.S. §14-3706.  The inventory must be either (1) filed with the Court and mailed to all interested persons who request it, or (2) not filed with the Court, but mailed or delivered to: (a) each of the heirs if the decedent died intestate or to each of the devisees if the decedent’s Will was admitted to probate; and (b) to any other interested person who requests a copy of the inventory.

11. STANDARD OF CARE

In administering estate assets, you must observe the standards of care applicable to a trustee, including the prudent investor rules.  See A.R.S. §14-10801 et seq. and 14-10901 et seq.

12. KEEP DETAILED RECORDS

You must keep detailed records of all receipts and expenses of the estate. You are required to provide an accounting of your administration of the estate to all persons affected by the administration.  See A.R.S. §14-3933.

13. PAY VALID DEBTS AND EXPENSES

You must determine which claims and expenses of the estate are valid and should be paid.  You must provide to any creditor whose claims are not allowed prompt written notification they will not be paid or will not be paid in full.  See A.R.S. §14-3806. To the extent there are enough assets in the estate, you are responsible for the payment of any estate debts and/or expenses that you know about or can find out about. If there are not enough estate assets to pay all debts and expenses, you must determine which debts and expenses should be paid according to the law. See A.R.S. §14-3805. You may be personally liable if you pay a debt or expense that should not be paid.

14. PAY TAXES

It is your responsibility to determine that all taxes are paid and that all tax returns for the decedent and the estate are prepared and filed.

15. DISTRIBUTE REMAINING ASSETS  

After payment of all debts or expenses of the estate, you must distribute estate assets as directed in the Will or, if there is not a Will, to the intestate heirs. If there are not enough assets in the estate to make the gifts as set forth in the Will, it is your responsibility to determine how the distributions should be made as required by law.  See A.R.S. §§ 14-3902 and -3907. You may be personally liable if you make an improper distribution of estate assets.

16. CHANGE OF ADDRESS

Until the probate is closed and you are discharged as Personal Representative, you must notify the Court in writing if you change your home or mailing address.

17. PAYMENT AS PERSONAL REPRESENTATIVE

As Personal Representative, you may be entitled to reasonable compensation.  See A.R.S. § 14-3719. Arizona statutes do not designate percentage fees for your work or say how much a Personal Representative should be paid. You must keep receipts to prove out-of-pocket expenses. In determining whether a fee is reasonable, the Court will consider the following factors:

1. The time required (as supported by detailed time records), the novelty and difficulty of the issues involved, and the skill required to do the service properly;
2. The likelihood that your acceptance as Personal Representative will preclude other employment;
3. The fee normally charged in the area for similar services;
4. The nature and value of estate assets, the income earned by the estate, and the responsibilities and potential liability assumed by you as Personal Representative;
5. The results obtained for the estate;
6. The time limitations imposed by the circumstances;
7. The experience, reputation, diligence and ability of the person performing the services;
8. The reasonableness of the time spent and service performed under the circumstances; and,
9. Any other relevant factors.

18. COURT INVOLVEMENT

Usually, to reduce estate expenses, estates are administered and estate claims and expenses are paid, including the fees to the attorney and Personal Representative, with little Court involvement. The Court does not supervise informal probates or the conduct of a Personal Representative. However, if any interested party believes that the estate has not been properly handled or that the fees charged by the attorney or Personal Representative are not reasonable under the circumstances, that party may require that the Court review the accounting for the Personal Representative’s administration of the estate. Any additional Court involvement may result in additional delay and expenses. If appropriate, the Court may assess the additional expense against the estate or the non-prevailing party.

19. CLOSE THE ESTATE

After you have administered the estate and the assets of the estate have all been distributed, the estate must be closed, either formally or informally. In an informal closing, a copy of the Closing Statement is filed with the Court and sent to all persons receiving a distribution from the estate. See A.R.S. §14-3933. For a formal closing, see A.R.S.  §§14-3931 and -3932. Usually, the estate should be completely administered and closed within one (1) year after the initial appointment of the Personal Representative. If it goes longer than two (2) years, the case is likely to be dismissed unless there is a good explanation of the delay. 

6 Common Myth’s of probate.

1. Having a Will or Trust avoids probate.
2. Probate is Always Lengthy and Expensive: Many people believe that probate is a time-consuming and costly process. While it can be if handled inefficiently or in cases with significant complexities, not all probate proceedings in Arizona are lengthy or expensive. Simple estates with clear documentation can be processed relatively quickly and inexpensively.
3. Everything Goes Through Probate: Another misconception is that all assets and properties must go through probate. In reality, Arizona has procedures in place for small estates and assets with designated beneficiaries, like life insurance policies and retirement accounts, which can often bypass probate entirely.
4. The State Takes Everything If There’s No Will: Some individuals think that if a person passes away without a will (intestate), the state will automatically seize their assets. In Arizona, the intestacy laws determine how assets are distributed among surviving relatives, and only if no eligible heirs can be found does the state become involved.
5. Probate is Always Contentious: While probate disputes do occur, not every probate case in Arizona leads to bitter family feuds or legal battles. Many cases proceed smoothly, especially when the deceased had a well-drafted will and clear instructions.
6. Avoiding Probate is Always the Best Option: People often try to avoid probate at all costs, thinking it’s always a bad thing. However, probate can provide necessary legal oversight and protection in certain situations. Furthermore, some estate planning tools, like trusts, may also come with their own administrative complexities and costs.