Transferring Property Without Probate

Clients frequently ask me something like the following: “I inherited a piece of property, do I have to go through probate just to transfer this one piece of property into my name?” In Arizona, the answer is often no.

If the property has $75,000.00 or less in equity, the land can often be transferred to the new owner without probate. In Arizona’s depressed real estate market, more and more properties now have less than $75,000.00 in equity and therefore qualify for transfer via an “Affidavit of Real Property Transfer.” (Real property just means land, as opposed to “personal property” which means cars, jewelry, furniture, etc.)

To determine whether the property has $75,000.00 or less in equity, simply subtract the outstanding balance of any lien against the property (a mortgage or “deed of trust”) from the assessed value of the land. For example, if the County Assessor’s Office values the land at $100,000.00 and the property has an outstanding mortgage balance of $50,000.00, this property has $50,000.00 in equity, and it qualifies for transfer via an affidavit.

There are some other restrictions, however. All of the following must be true to use an affidavit instead of probate:

-the prior owner must have died at least six months prior to filing the affidavit;
-a personal representative must not have been appointed over the prior owner’s estate in Arizona or any other state (if a personal representative has been discharged, an affidavit may still be used);
-the prior owner’s debts must be paid, including funeral expenses and expenses of his/her last illness.
-Title companies may require a probate even though you have met all of these other requirements. This is often because of the title insurance requirements.

There are a few additional restrictions, but if the prior statements all apply, you likely can use an affidavit rather than probate to transfer the property into your name. Feel free to contact us to determine if an affidavit can be used in your case. Deloughery Law Office, P.C. charges a low flat fee (plus filing fees which vary by county but typically total between $250.00 and $300.00) to draft and file the affidavit and all the other required documents.

If an affidavit is not available in your case, we can still assist you either through opening an informal probate or ancillary probate (which is used if the prior owner’s estate is being probated in another jurisdiction).

I hope this information is helpful. Paul Deloughery
(You can contact me directly by email at paul@delougherylaw.com or phone at 602-443-4888. For more information, visit www.delougherylaw.com)

The information in this blog is general in nature and is not intended to address any particular situation.