AFFIDAVIT

In some cases, small estates can be more complex than an average probate. This is especially true when dealing with an insolvent estate. The insolvency can often overwhelm the surviving spouse. Fortunately, the Arizona probate code provides several solutions. In this article, I’ll discuss a solution that simplifies the transfer of the decedent’s assets.

In Part II, I cover statutory allowances and exemption for the surviving spouse and minor children, if any; and in Part III, I discuss the priority of such allowances and exemption over certain creditor claims.

Transfers by Affidavit

There are three types of affidavits a surviving spouse may execute regarding the transfer of decedent’s assets without probate. The statements contained within an affidavit are dependent on the type of assets the surviving spouse wishes to claim. Below is a brief outline of the requirements:

  • Unpaid wages: A surviving spouse may execute an Affidavit for the receipt of unpaid wages or other compensation owed to the decedent. Such affidavit must state that such compensation does not exceed $5,000, that the surviving spouse is entitled to such unpaid compensation, and a petition for the appointment of a personal representative is not pending or if a personal representative had been appointed, the personal representative has been discharged or more than one year has elapsed since a closing statement has been filed.
  • Personal Property: A surviving spouse may execute an Affidavit for the transfer of the decedent’s personal property, such as bank accounts, stock, and tangible personal property. Such affidavit must state that the surviving spouse is the successor of such assets, that 30 days has elapsed since the decedent’s death, the value of decedent’s personal property does not exceed $75,000, and a petition for the appointment of a personal representative has not pending or if a personal representative had been appointed, the personal representative is been discharged or more than one year has elapsed since a closing statement has been filed.
  • Real Property: A surviving spouse may execute an Affidavit for the transfer of the decedent’s real property. The affidavit must state that at least six months have elapsed since the decedent’s death, the value of decedent’s real property, less encumbrances, does not exceed $100,000, and a petition for the appointed of a personal representative is not pending or if a personal representative had been appointed, the personal representative has been discharged or more than one year has elapsed since a closing statement has been filed. The surviving spouse must also state that he or she is entitled to the real property by reason of the allowance in lieu of homestead, exempt property or family allowance, by intestate succession as the sole heir, or by devise under a valid last will of the decedent, that the funeral expenses, expenses of last illness and all unsecured debts of the decedent have been paid, that no other person has a right to the interest of the decedent in the described property, and that no federal estate tax is due on the decedent’s estate. This affidavit must be filed with the court in the County in which the decedent reside, provided the decedent was a resident of the State of Arizona.

Laura Morrison Trujillo
ltrujillo@mclawfirm.com