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.