Probate versus probate in Arizona

In Arizona, when a person dies, title to property passes to the individual’s heirs if the individual died without a will or to the devisees if the individual died with a will.[i] Because title vests in the heirs or devisees at death, it is not always necessary to qualify a personal representative to prove title.[ii] This article focuses on persons dying with a will in Arizona.

Probate does not require appointment of a personal representative. Probate is the judicial procedure by which a testamentary document is established to be a valid will; the proving of a will to the satisfaction of the court.[iii] The term now has also loosely extended to the process of administering the estate of a deceased person. But probate, meaning proving that a will is valid, and appointment of a personal representative are two distinct actions.[iv] A person can probate a will and not seek appointment of a personal representative.[v]

A probated will, by itself, is proof of title in the absence of any administration.[vi] A person can probate a will and thereby prove title without the appointment of a personal representative and without qualifying for a small estate affidavit.[vii] For example, if real estate was not transferred to a revocable trust a probated, pour-over, will can prove transfer of title to the trust after death, and qualification of a personal representative is not required.[viii]

If a person does qualify as personal representative, that person has “power” over the property, not title.[ix] The personal representative, if properly acting within the scope of the personal representative’s duties, may exercise the power and divest the heirs or devisees of title to property by transferring property.[x] If the power is not exercised during administration, the lapse of this power clears title in the devisees (or heirs).[xi] This is why at the termination of estate administration, a personal representative may “release” the personal representative’s power over estate property owned by the deceased at death.[xii]

Failure to probate a will may result in loss of the property if an heir claims title through intestacy and disposes of the property to a bona fide purchaser. In In re Est. of Parker, 217 Ariz. 563 (Ct. App. 2008), purchasers of real property were able to quiet title in their favor when they relied on a surviving spouse’s small estate affidavit even though there was an unprobated will that devised the real estate to someone other than the surviving spouse. The devisee in Parker could have protected its interest by probating the will and, for good measure, recording the probated will in the land records.

As a practical matter, simply relying on a probated will to prove title may be helpful when there is one clear devisee, such as the deceased’s revocable trust. If there is more than one devisee and the personal representative has the power to distribute estate assets non-pro rata among several devisees, administration through a personal representative is likely preferable if the beneficiaries do not want to own an equal share of each item owned by the decedent at death.[xiii] In that case, the beneficiaries may want a personal representative who can exercise power over the property.[xiv]

Thomas “TJ” Aldous is of counsel in Fennemore’s trusts, estates and wealth preservation practice group where he is adept at counseling clients, building client trust and managing client relationships. He possesses experience in estate planning, trust formation and administration, tax controversy and IRS audits, business contracts, real estate and commercial leases, and tax matters with the ability to understand and negotiate complex agreements.

---

[i] Ariz. Rev. Stat. Ann. §14-3101(A); Ariz. Rev. Stat. Ann. §14-3901; see also In re McDonnell’s Estate, 65 Ariz. 248, 252 (1947) (stating it is fundamental that immediately upon death title to real property vests in the heirs who may then convey their interests subject, of course, to the ordinary processes of administration and the rights of creditors).

[ii] If there is no administration of the estate, the persons entitled to the property take subject to creditor claims. Ariz. Rev. Stat. Ann. §14-3901.

[iii] PROBATE, Black’s Law Dictionary (11th ed. 2019).

[iv] Ariz. Rev. Stat. Ann. §14-3301; Ariz. Rev. Stat. Ann. §14-3402 (acknowledging a formal probate or adjudication of intestacy may be “with or without request for appointment of a personal representative”).

[v] See Ariz. Rev. Stat. Ann. §14-3301. Note differences between (B)(1) and (B)(2). (B)(2) only applies to probate of a will.

[vi] Ariz. Rev. Stat. Ann. §14-3901(A) (devisees may establish title by the probated will to devised property).

[vii] In general, to be effective to prove the transfer of any property, a will must be declared to be valid by a statement of informal probate by the registrar or an adjudication of probate by the court. See Ariz. Rev. Stat. Ann. §14-3102. However, probate is not necessarily required if one is relying on a small estate affidavit. Ariz. Rev. State. Ann. §14-3971(E)(4) (noting that an affidavit for real estate can include the attached original will or state that the will was probated). A small estate affidavit is not a deed or instrument of transfer. A small estate affidavit assures the person in possession of property that it can pay over property to the person presenting the small estate affidavit. The person or persons presenting the small estate affidavit already received title at the death of the deceased under Ariz. Rev. Stat. Ann. §14-3101. In litigation, it is also possible to rely on an unprobated will as evidence of a devise. Ariz. Rev. Stat. Ann. §14-3102. But no court proceeding concerning the succession or administration of the estate could have occurred and either the devisee or his successors and assigns must have possessed the property devised in accordance with the provisions of the will, or the property devised was not possessed or claimed by anyone by virtue of the decedent’s title during the time period for testacy proceedings. Ariz. Rev. Stat. Ann. §14-3102.

[viii] The author has experience with title companies insuring title to real estate based on a probated will and without a small estate affidavit.

[ix] Ariz. Rev. Stat. Ann. §14-3711. See comment to Uniform Probate Code section 3-711 (stating “[the personal representative] receives a ‘power’, rather than title, because the power concept eases the succession of assets which are not possessed by the personal representative. . . The power over title of an absolute owner is conceived to embrace all possible transactions which might result in a conveyance or encumbrance of assets, or in a change of rights of possession.” The court in In re Estate of Gordon, 207 Ariz. 401, 408, ¶ 37, 87 P.3d 89, 96 (App. 2004), overstates the plain language of the statute and incorrectly states that the personal representative has title – when the personal representative only has power over title – as follows, “The personal representative maintains title in the decedent’s place to the property of the estate until the appointment is terminated. Ariz. Rev. Stat. Ann. § 14–3711 (1995).”

[x] Ariz. Rev. Stat. Ann. §14-3715.

[xi] Uniform Probate Code section 3-711 comment; see also May v. Ellis, 208 Ariz. 229, 232, ¶ 12 (2004) (when “a statute is based on a uniform act, we assume that the legislature intended to adopt the construction placed on the act by its drafters, and commentary to such a uniform act is highly persuasive”).

[xii] The comment to Uniform Probate Code section 3-907 notes that a personal representative can acquire title to particular items of property during estate administration through purchase.

[xiii] See Ariz. Rev. Stat. Ann. §14-3908; §14-3910.

[xiv] There are benefits to the administration of an estate. There is no intent to say int his article that estate administration and qualification of a personal representative is not appropriate or necessary.

[1] Ariz. Rev. Stat. Ann. §14-3101(A); Ariz. Rev. Stat. Ann. §14-3901; see also In re McDonnell’s Estate, 65 Ariz. 248, 252 (1947) (stating it is fundamental that immediately upon death title to real property vests in the heirs who may then convey their interests subject, of course, to the ordinary processes of administration and the rights of creditors).

[1] If there is no administration of the estate, the persons entitled to the property take subject to creditor claims. Ariz. Rev. Stat. Ann. §14-3901.

[1] PROBATE, Black’s Law Dictionary (11th ed. 2019).

[1] Ariz. Rev. Stat. Ann. §14-3301; Ariz. Rev. Stat. Ann. §14-3402 (acknowledging a formal probate or adjudication of intestacy may be “with or without request for appointment of a personal representative”).

[1] See Ariz. Rev. Stat. Ann. §14-3301. Note differences between (B)(1) and (B)(2). (B)(2) only applies to probate of a will.

[1] Ariz. Rev. Stat. Ann. §14-3901(A) (devisees may establish title by the probated will to devised property).

[1] In general, to be effective to prove the transfer of any property, a will must be declared to be valid by a statement of informal probate by the registrar or an adjudication of probate by the court. See Ariz. Rev. Stat. Ann. §14-3102. However, probate is not necessarily required if one is relying on a small estate affidavit. Ariz. Rev. State. Ann. §14-3971(E)(4) (noting that an affidavit for real estate can include the attached original will or state that the will was probated). A small estate affidavit is not a deed or instrument of transfer. A small estate affidavit assures the person in possession of property that it can pay over property to the person presenting the small estate affidavit. The person or persons presenting the small estate affidavit already received title at the death of the deceased under Ariz. Rev. Stat. Ann. §14-3101. In litigation, it is also possible to rely on an unprobated will as evidence of a devise. Ariz. Rev. Stat. Ann. §14-3102. But no court proceeding concerning the succession or administration of the estate could have occurred and either the devisee or his successors and assigns must have possessed the property devised in accordance with the provisions of the will, or the property devised was not possessed or claimed by anyone by virtue of the decedent’s title during the time period for testacy proceedings. Ariz. Rev. Stat. Ann. §14-3102.

[1] The author has experience with title companies insuring title to real estate based on a probated will and without a small estate affidavit.

[1] Ariz. Rev. Stat. Ann. §14-3711. See comment to Uniform Probate Code section 3-711 (stating “[the personal representative] receives a ‘power’, rather than title, because the power concept eases the succession of assets which are not possessed by the personal representative. . . The power over title of an absolute owner is conceived to embrace all possible transactions which might result in a conveyance or encumbrance of assets, or in a change of rights of possession.” The court in In re Estate of Gordon, 207 Ariz. 401, 408, ¶ 37, 87 P.3d 89, 96 (App. 2004), overstates the plain language of the statute and incorrectly states that the personal representative has title – when the personal representative only has power over title – as follows, “The personal representative maintains title in the decedent’s place to the property of the estate until the appointment is terminated. Ariz. Rev. Stat. Ann. § 14–3711 (1995).”

[1] Ariz. Rev. Stat. Ann. §14-3715.

[1] Uniform Probate Code section 3-711 comment; see also May v. Ellis, 208 Ariz. 229, 232, ¶ 12 (2004) (when “a statute is based on a uniform act, we assume that the legislature intended to adopt the construction placed on the act by its drafters, and commentary to such a uniform act is highly persuasive”).

[1] The comment to Uniform Probate Code section 3-907 notes that a personal representative can acquire title to particular items of property during estate administration through purchase.

[1] See Ariz. Rev. Stat. Ann. §14-3908; §14-3910. [1] There are benefits to the administration of an estate. There is no intent to say int his article that estate administration and qualification of a personal representative is not appropriate or necessary.