Many people often mistakenly believe that they can avoid probate simply by writing and signing a legally valid Last Will. This is a mistake that can often cause a lot of extra expense and other headaches for loved ones whom we leave behind.

Probate is an Arizona Superior Court process in which the property of a deceased person (“decedent”) is distributed. It covers any property of the decedent that is left in their own name without any measures taken to assure that the property is transferred outside of probate at death.  Probate occurs in cases where there is a Will as well as in cases where there is no Will. If there is no Will then the decedent’s property passes in accordance with the Arizona laws of Intestacy. Where a Will exists it serves as direction for the court and the Personal Representative (formerly called an executor) regarding how the property is to be distributed under the probate process.

It is important to avoid the probate process in the vast majority of instances because it is an unnecessary use of time and expense. There are a number of means for avoiding probate and each have significant advantages and disadvantages depending on the circumstances.

 For example, people often choose to create joint ownerships which will avoid probate by adding a child or other person who is not a spouse as an owner on a bank account or other financial account. While this is a fairly simple way to remove that asset from any probate, it also leaves the person’s assets exposed to liability for unlawful acts, both negligent and intentional, of the person they are naming as a joint owner.

Persons also sometimes make gifts of their property while they are living to avoid any probate. This presents a problem with capital gains taxes because when the person receiving the gift eventually sells it their profit (capital gain) is measured against what the decedent paid for the asset, causing a higher gain and a higher potential tax bill.  When gifts are made at death their “cost” is stepped up to the market value of the asset at the time of death which is typically much higher and amounts to zero capital gain at death since cost and value are equal at death.

At Arizona Mobile Attorneys we can talk with you to determine your estate planning needs and the best way to avoid any probate, evaluating and comparing the various mechanisms for efficiently accomplishing your objectives. Please contact us for a consultation.

© 2025, Arizona Mobile Attorneys