THE SMALL ESTATE AFFIDAVIT AND AVOIDING PROBATE
“My mom had a checking and savings account in her name only with no beneficiaries named. All her other assets were either in joint names or had beneficiaries named. Now that my mom is deceased, do I have to open a probate to gain control of these accounts?”
There is a procedure available in Arizona to gain control of personal property (that is, assets other than real estate) that is in the decedent’s name only with no beneficiaries designated. If the total of all such assets does not exceed $75,000, the person or persons legally entitled to receive such assets can sign an affidavit, present it to the institution where the account or accounts are located, together with a certified death certificate. The institution can then transfer the account or accounts to the person(s) submitting the affidavit without the need to open a probate. The requirements for this affidavit and who can submit such an affidavit are set forth in Arizona Revised Statutes 14-3971.
Summarizing briefly the requirements of the statute :
- At least 30 days have passed since death of decedent before the affidavit can be signed/presented;
- There has been no probate initiated or any previous probate has been concluded;
- The person claiming the account(s) must be the person entitled by law to receive same.
Any person delivering the account(s) to the person submitting such an affidavit is not subject to any liability for delivery of the account(s) to the same extent as if the account(s) had been delivered to a duly appointed personal representative in the probate of the decedent=s estate. Arizona Revised Statutes 14-3972.