Ancillary Probate in Arizona

This article discusses some of the basic laws and procedures that apply to the probate of the Arizona property of a decedent who died while domiciled in another state (a foreign domiciliary). Arizona statutes provide several potential alternatives to the estates of decedents who were domiciled in another state at the time of death and owned property in Arizona.

The first option needn't involve any probate of the estate in Arizona or elsewhere. If the entire estate of the decedent (the entire estate, not just the Arizona property) is small enough to allow for the use of small estate affidavits.

Secondly, if the principal administration of the estate is being handled in the state of domicile, then the Arizona property can be administered either through a local ancillary probate administration (formal or informal) (see ARS 14-4207) or without local administration through a proof of authority filing (see ARS 14-4201 through 4205).

Finally, if no principal administration of the estate is taking place in state of domicile, a principal administration of the estate could take place locally in Arizona (see ARS 14-4207).

Small Estate Affidavits


These affidavits (see ARS 14-3971 through 3974) can be used to transfer the decedent's Arizona property whether the decedent was domiciled in Arizona or elsewhere at the time of death. The details of the use of these assets is the topic of a separate article, but, in general, if there is no probate proceeding with respect to the decedent's property in any estate and if the net value of all real property in the estate is $75,000 or less, it is possible that any Arizona real property can be transferred through the use of an Affidavit for Transfer of  Title to Real Property. Similarly, if there is no probate proceeding with respect to the decedent's property in any estate and if the net value of all the decedent's personal property (tangible and intangible) is $50,000 or less, it is possible that any Arizona personal property can be transferred through the use of an Affidavit for Collection of Personal Property.

A Proof of Authority Filing


If principal administration of the estate is taking place in the state of domicile, and no local administration has begun in Arizona, the decedent's personal representative (or executor) in that state (the domiciliary personal representative) can become authorized to transfer the decedent's Arizona property through proof of authority. A proof of authority is not a local administration of the Arizona estate. Rather, it is a filing in Arizona probate court that authorizes the transfer of Arizona property under the authority given in the domiciliary administration. In many cases, filing a proof of authority is a much simpler and less expensive process than a full blown ancillary proceeding.

A proof of authority filing is made by filing with the probate court in a county where the property is located an affidavit that recites the applicable facts, to which is attached a certified copy of the Letters in the domiciliary administration. If there is a bond requirement in the original jurisdiction, a certified copy of the bond must be attached. On the other hand, if there is no bond requirement in the original jurisdiction, a certified copy of the appointment document (or other document) indicating that there is no bond requirement should also be attached to prove the absence of a bond requirement.

The filing fee for a Proof of Authority is the same as it is for a probate. There is also a fee to obtain a Certified copy of the Proof of Authority, one of which needs to be recorded in each Arizona county where the decedent owned property. The domiciliary foreign personal representative is then authorized to “exercise as to assets in this state all powers of a local personal representative” (ARS 14-4205). The domiciliary foreign personal representative may transfer the property by sale or Deed of Distribution, and may deal as needed with any mortgage holder.

An Ancillary Probate in Arizona


An ancillary probate proceeding is a local proceeding that mirrors the principal administration of the state in another jurisdiction, but covers only Arizona property. If a Proof of Authority filing is a possibility, it should be used rather than an ancillary probate proceeding. In the event such a filing isn't applicable, then an ancillary administration in Arizona can be used to transfer the applicable property. This proceeding is, in most respects, very similar to a principal administration, except that it is limited in certain respects (such as the notification of creditors) because it deals only with the Arizona estate. Venue is in an Arizona county where some of the decedent's property is located. The captions of the various pleadings need to indicate the ancillary nature of the proceeding, which will also be represented in the text of the pleadings, as applicable.


An Arizona Principal Administration


If there is no principal administration of the estate in the domiciliary jurisdiction, the principal administration of the estate can take place in Arizona. Venue is in an Arizona county where some of the decedent's property is located.

AvidLaw Probate is designed to help practitioners prepare documents for each type of proceeding described above. For more information about AvidLaw Probate, please call 480-361-1324 or visit our website www.avidlaw.com.

Notice to Creditors

ARS 14-3801 requires that two kinds of notice be given to the creditors of a decedent's estate. In the first place, the personal representative must publish notice to creditors once a week for three consecutive weeks. Secondly, the personal representative must notify all “known creditors” either by mail or by other delivery. These notices inform creditors of the need to file a claim with the estate before the deadline for filing such claims passes. Most distributions from the estate can only take place after this deadline has passed.
Notice by publication
Notice by publication must be given at the time of appointment. The notice must be published in a “a newspaper of general circulation in the county.” A good list of such newspapers can be found at  http://www.azcc.gov/divisions/corporations/filings/forms/newspubs.pdf. This list was compiled with respect to a different statute with the same standard. Various factors including cost, convenience, cooperation, etc. set publishers apart from each other. Select a publisher that meets the needs of your client.
Notice by mail
All known creditors must receive notice by mail or other delivery. The term “known creditors” isn't defined, but counsel for personal representatives should consider a broad definition and err on the side of sending such notice. If, during the course of estate administration, the court were to determine that a given creditor that didn't receive notice by mail or delivery is a “known creditor,” the deadline for this creditor to file a claim against the estate would be extended. The reality of this risk increases the incentive to send notice by mail to any potential creditor for whom an address is reasonably available.
Deadline for filing a claim
In general, creditors may file a claim against the estate for 120 days (basically four months) after the first publication date. In most cases, this deadline applies to “known creditors” as well as creditors for whom notice is given by publication. However, if notice by mail or delivery is given more than 60 days after the first date of publication, the known creditor may continue to file a claim against the estate until 60 days have passed after the mailing or delivery of the notice.
The filing of a claim
ARS 14-3804 provides that, to file a claim, a creditor merely needs to mail or deliver to the personal representative a written statement of the claim, which is a written document that indicates the basis of the claim, the name and address of the claimant and the amount claimed. The claim is deemed presented on receipt of the written statement of claim by the personal representative. It is not necessary that this information be provided in particular form. For instance, an invoice or other correspondence that is received by the personal representative (or counsel for the personal representative) and that contains this information will, in most cases, constitute the filing of a claim against the estate.
The statutes relating to claims against the estate contain many provisions that are not considered in this short article. Consider reviewing these statutes, primarily ARS 14-3801 through 14-3816.

Tips & Tricks: New License Code Features

Recently we have added a couple of new features to AvidLaw Probate that you may or may not have noticed.  Whenever you need to review your license agreement or change your firm’s license code, you do so at the license agreement screen, which is found in the Enter Attorney Information item. The license agreement screen, titled AvidLaw AIP License Agreement, is the final screen in this item.

The first feature that we have added applies to the text box where you enter your license code.  In the past, you rarely needed to revisit this screen after your license code was entered.  With the new pricing options, a firm that moves from a matter-based license to an annual license (or vice versa) receives a new license code. Because of this, we now make the license code field available at all times.  This allows you, upon renewal of your annual license, changes to your law firm information, or if you switch to matter-based licensing, to simply enter the new code and update your license. (Note: if you are switching to matter-based you will also need to accept the license agreement for matter-based users.)

A second feature we have added is a countdown feature that shows you how many days remain before your annual license expires.  This feature allows you to quickly check how much time you have left on your annual license and is also found on the license agreement screen.

As always we are committed to providing your firm with the best products and support possible.  We are always looking for new ways to help streamline your practice.  Please feel free to contact us with any suggestions on how to improve AvidLaw Probate.  Thank you!