The reason for such misunderstanding is probably the scare tactics some commercial firms use to sell their living trusts.  Such non-law firms some of us call “trust mills” want the public to believe that the probate procedure includes the state taking a big bite out of the assets the decedent left.  That way they can sell even more of their one-size-fits-all living trusts.

Another surprise to many clients is that the probate procedure, when it is necessary, can be much less of a headache than they thought it would be.  When a law firm such as ours with plenty of experience in probate is engaged, the entire legal process should be as smooth and hassle-free for the client as possible.  We like to tell our clients that one of our goals for our clients is that they be able to get a good night’s sleep.

Probates do not have to take forever to get through.  If there are no complicating factors that need to be dealt with, a probate can be completed within five months or so.  That length of time is arrived at by starting with the statutory creditor notice period, which takes about four months, and adding a couple of weeks on the front end to get the case going, and a couple of weeks on the back end to wrap things up.  Often probate cases take longer than that but it will be because of issues in a particular case that cannot be rushed, for example a house that needs to be sold or assets that for some reason take a while to be collected.

In Arizona, a “Closing Statement” is filed with the court when an “informal” probate procedure is essentially complete.  The filing of the Closing Statement starts the clock ticking for about a year.  At the end of that year, the final document, called the “Certificate of Registrar” is issued by the clerk of court.  The good news is that during that year there is probably almost nothing the personal representative has to do.  It is just a period of time required by law, during which everyone waits to see if there is any unfinished business that pops up.  Usually there is not.

When a law firm conducts a probate, the attorney and legal staff do most of the work involved.  That is why the largest part of probate costs are for the lawyer’s services.  There is just a lot to do, and when unusual, difficult or unexpected issues arise it takes time to deal with them properly.  The more time required in a case, the higher the costs will be.  However, there are often things the personal representative (executor) can do if he or she wants to be “hands on”, and that is one way costs can be contained.

It is important to establish that every client, especially the infirm, are actually the ones who are making decisions about the details of their own estate planning. If it appears that someone else, however well-meaning, is playing too large a role in decision making, that can indicate “undue influence”, which can justify the attorney refusing to accept the work. Also, in cases where undue influence can later be shown to have occurred, estate planning can be undone by the court.

Our practice is for the attorney to meet alone with the prospective client, and after it is clear that capacity is not at issue and there is no undue influence, family members are allowed to join in the discussion, but only then if the elder expressly wants them to. So, initially the elder’s “ride” sits in the waiting room and is invited into the conference room only if the elder requests it and the attorney is certain that the prospective client is speaking for himself.

A very common indication of possible undue influence is when family members refer to what “we” want. The attorney will make it very clear that it is not the family that is doing the planning but the elders themselves. The elder is the prospective client, not the family members.

For such representation to occur and produce the desired results, prospective clients who are elderly yet have no mental incapacity issues need to consult with an attorney and the sooner the better. Such successful attorney/client relationship can produce an estate plan that is most likely to survive the challenges to come in later life, which may include incapacities such as dementia.

In that regard, mental healthcare powers of attorney can be especially helpful. More and more attorneys are providing mental healthcare provisions, which are optional to the standard healthcare power of attorney, and very well may avoid the need for guardianship later. Discuss this with your attorney.

So, when the family is concerned about the provisions made for an elder’s future, do not delay and do not confuse who the client is. Encourage your mother, father or other older relative or friend to take the initiative and discuss these issues with an attorney. If help is needed to make the call or to get to the attorney’s office, that is fine, but once the connection is made it is time to step back and let the elders speak for themselves.

Spouses and other couples who are not legally married very often own all their major assets as joint tenants with right of survivorship. As most people know, that means that between the two, when there is a death the survivor will own all the assets that were jointly titled. For example, if there is a house held as a joint tenancy or perhaps as community property with right of survivorship, the surviving owner will take title to that “real property” (real estate) on the death of the other owner. Generally, the recording of a Certificate of Death at the County Recorder’s office will be sufficient to transfer title to the survivor. When an interest in real property is transferred in this way, it does not trigger probate.

The same principal holds true for financial accounts. If one of two joint owners with right of survivorship passes away, the surviving owner will then take title to the account. As with interests in real property, a Certificate of Death needs to be presented to the financial institution. This puts them on notice of the death and allows them to re-title the financial account, putting it in the name of the surviving owner. When title to a financial asset is transferred to a surviving joint tenant, probate of the decedent’s estate is not triggered.

When assets are transferred to a death beneficiary, this too avoids probate. The designation of a death beneficiary is sometimes referred to as “POD” on an account. POD stands for “pay on death”. There may also be a “TOD”, which means “transfer on death”. However it is expressed, the transfer of an asset to a death beneficiary avoids probate being caused by that asset. Insurance works the same way, with the insurance proceeds going to a beneficiary. There can be death beneficiaries designated on financial accounts such as savings or checking, and other financial instruments such as IRAs. In Arizona, we are able to use a “beneficiary deed” in the same way to keep real property from triggering probate.

As stated above, persons who own all their property together as joint tenants can usually avoid probate when one of them passes away. Probate can also usually be avoided when the sole owner of financial or real property leaves the property to a death beneficiary or multiple beneficiaries. So the answer to the question “Do we need to have a probate?” may very well be “no” if all the decedent’s interest in property has passed to joint owners or death beneficiaries.