Small Estates Bypass Arizona Probate

Using an Affidavit of Collection of Personal Property

Definitions

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Personal Property Everything that is not real property (land). Personal property can be divided into two major categories: (1) corporeal personal property such as animals, merchandise and jewelry; and (2) incorporeal personal property, comprised of such rights as stocks, bonds, patents, and copyrights.

Real Property All land, structures, firmly attached and integrated equipment (such as light fixtures or a well pump), anything growing on the land, and all "interests" in the property which may be the right to future ownership (remainder), right to occupy for a period of time (tenancy or life estate) the right to drill for oil, the right to get the property back (a reversion) if it is no longer used for its current purpose (such as use for a hospital, school or city hall), use of airspace (condominium) or an easement across another's property.

A surviving spouse can have immediate access to the deceased spouse's paycheck

The surviving spouse will need an affidavit pursuant to Arizona Revised Statute Section 14-3971(A) saying that she is the surviving spouse and that no application or petition for probate is pending in Arizona. She can use this affidavit to collect wages, salary or other compensation not in excess of $5,000.

Thirty days after the death of a decedent:

Any person holding personal property of the decedent shall make payment of the indebtedness or deliver the tangible personal property to the person claiming to be the successor of the decedent. According to the statute, this would apply to a debt, and so the affidavit can be used to collect a savings account or a checking account. It can also be used for tangible personal property like getting title to a car. But the aggregate of all such property cannot exceed $75,000.

Six months after the date of death of the decedent:

The person or persons claiming to be successors in interest to the decedent can prepare an affidavit of succession to real property. The tax assessed value of the property in the year of the decedent's death, less any liens or encumbrancess, cannot exceed $75,000. This is a good option for parcels of land of modest value. But there are some drawbacks that may drive you to do a regular probate, instead. First, you may not want to wait 6 months after a death to sell the real estate. Second, you have to swear in the affidavit that you have paid all of the debts of the decedent. Third, you still have to pay the probate case filing fee into court along with some fees for certified copies and for recording of the affidavit with the county recorder.

In the case of real property owned by two or more people, where one owner has died, we are concerned with the value of the decedent's fractional interest in the property, and not the value of the whole property.