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Irwin Law
Irwin Law, Attorney
Category: Estate Law
Satisfied Customers: 7159
Experience:  30+ yrs. handling probate estate, wills, trust, inheritance & real estate related matters
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If someone passes away with a Living Trust that already contains most

Customer Question

If someone passes away with a Living Trust that already contains most of their assets, and they also have a Pour-Over-Will that places everything else into that Trust, does that mean nearly all value is located in the Trust-Estate and almost nothing of
value remains in the Probate-Estate, therefore exempting the apparent beneficiary from being challenged in probate court? 14-3971 Collection of personal property by affidavit; ownership of vehicles; affidavit of succession to real property 14-3972 Effect of
affidavit 14-3973 Small estates; summary administrative procedure 14-3974 Small estates; closing by sworn statement of personal representative http://www.azleg.gov/ArizonaRevisedStatutes.asp?Title=14
Submitted: 1 year ago.
Category: Estate Law
Expert:  Irwin Law replied 1 year ago.
Please explain more about what you mean by "exempting the apparent beneficiary from being challenged in probate court." What has that person done which he is concerned about being challenged in probate court.
Customer: replied 1 year ago.
I seek to establish undue influence by the suddenly named representative, sole trustee, and sole beneficiary who was in a confidential relationship with the testator at the time of concealed revisions that overturned a decade of consistent restatements.I would rather not focus on the evidence that i have or if I'm likely to succeed at this point. Before getting to that I need to know how and where to even make that challenge if all substantial wealth is in a trust-estate, rendering the probate-estate to most likely contain well under $75,000, therefore qualifying as a small estate with explicit ARS guidelines for small estates available to this person.Please advise.
Expert:  Irwin Law replied 1 year ago.
You seem to have hit the nail on the head as far as analyzing your problem goes. You would have to file suit to attack the changes to the trust that you object to. That would most likely require an original action to be filed in probate court against the trustee and or the beneficiary of the trust and/or whoever brought about the changes that you object to. As far as contesting the will goes, that would be done using standard probate procedure for your state. The fact that the will pours over into the trust, leaving few probate assets is not grounds to object to the will. That is the primary purpose of Pour Over provisions. Also, most small estate provisions that I'm aware of our for intestacy situations rather than testate. I hope that this information is helpful and that you will assign it a positive rating.
Customer: replied 1 year ago.
The small estate provisions in the Arizona Revised Statute appear to be applicable to both testate and intestacy (ARS 14-3971-E-4: “by intestate succession as the sole heir or heirs, or by devise under a valid last will of the decedent”). I interpret the relevant statutes to exempt small estates from requiring either informal appointment or adjudication of a personal representative before a decedent’s Last Will may be lawfully carried out and their property dispensed. The only things that appear to be required for a sole beneficiary to avoid probate altogether, is for an heir or a person who is named as the representative in the decedent’s will to simply wait the required time period, and then file an affidavit with the original will attached.Furthermore, ARS 14-6101 appears to state that any trust instrument that designates a beneficiary to be paid upon death is a non probate transfer that can be enacted immediately.Have I misinterpreted something? My questions remain: How do I challenge a will that has little or no value and therefore isn’t required to go through probate (if that’s a correct interpretation), and how do I challenge trust revisions if not through probate? If your previous suggestions are still applicable, then please explain…1. How and where do I file suit to attack the changes to the trust that I object to?2. How and where do I file an original action in probate court against the trustee/beneficiary?3. How do I use standard local probate procedure to contest the will?(Please be specific in your reply with detailed reference to the governing source)
Customer: replied 1 year ago.
Below are excerpts from relevant statutes (I referenced most of these in my opening question):14-3102 - Necessity of statement or order of probate for will; exception
- “Except as provided in section 14-3971, to be effective to prove the transfer of any property or to nominate an executor, 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”14-3971 - Collection of personal property by affidavit; ownership of vehicles; affidavit of succession to real property
- “B. Thirty days after the death of a decedent, any person indebted to the decedent or having possession of tangible personal property or an instrument evidencing a debt, obligation, stock or chose in action belonging to the decedent shall make payment of the indebtedness or deliver the tangible personal property or an instrument evidencing a debt, obligation, stock or chose in action to a person claiming to be the successor of the decedent upon being presented an affidavit”
- “E/4. The person or persons signing the affidavit are 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 heirs, or by devise under a valid last will of the decedent, the original of which is attached to the affidavit or has been probated.14-3973. Small estates; summary administrative procedure
- “If it appears from the inventory and appraisal that the value of the entire estate, less liens and encumbrances, does not exceed allowance in lieu of homestead, exempt property, family allowance, costs and expenses of administration, reasonable funeral expenses, and reasonable and necessary medical and hospital expenses of the last illness of the decedent, the personal representative, without giving notice to creditors, may immediately disburse and distribute the estate to the persons entitled thereto and file a closing statement as provided in section 14-3974.”14-3974. Small estates; closing by sworn statement of personal representative
- “A. Unless prohibited by order of the court and except for estates being administered by supervised personal representatives, a personal representative may close an estate administered under the summary procedures of section 14-3973…”
- “C. A closing statement filed under this section has the same effect as one filed under section 14-3933.”14-6101 - Nonprobate transfers on death; nontestamentary nature
“A. A provision for a nonprobate transfer on death in any insurance policy, contract of employment, bond, mortgage, promissory note, certificated or uncertificated security, account agreement, custodial agreement, deposit agreement, compensation plan, pension plan, individual retirement plan, employee benefit plan, trust, conveyance, deed of gift, marital property agreement or other written instrument of a similar nature is nontestamentary”.
“B. A written instrument is nontestamentary if it contains a provision that:
1. Money or other benefits due to, controlled by or owned by a decedent before death shall be paid after the decedent's death to a person whom the decedent designates either in the instrument or in a separate writing, including a will, executed either before or at the same time as the instrument, or later.
2. Money due or to become due under the written instrument ceases to be payable in the event of death of the promisee or the promisor before payment or demand.
3. Any property that is controlled by or owned by the decedent before death and that is the subject of the written instrument passes to a person the decedent designates either in the written instrument or in a separate writing, including a will, executed either before or at the same time as the instrument or later.
C. This section does not limit rights of creditors under other laws of this state.”http://www.azleg.gov/ArizonaRevisedStatutes.asp?Title=14
Expert:  Irwin Law replied 1 year ago.
I am not able to continue working with your question, so I have opened it up for others.
Customer: replied 1 year ago.
So, first you give me false information with a blind guess worthy of a magic eight ball, then you simply dump me without even trying to help, again. You're the second lawyer in a row to waste my time and simply bail without even trying to answer my straight forward questions.  But hey, it's not like I'm in dire need of urgent answers while I risk letting my family down as their only hope at seeking justice, which is a rapidly fleeting opportunity. Oh wait, yes I am, and yet I don't even have the basic recourse of giving your service a low rating because the apparently fraudulent rating system won't allow me to rate someone who wastes my time, steers me wrong, doesn't even try and then simply leaves without explanation, forcing me to start all over, again. I've now wasted 4 days and I'm back to square one.That's just great.  Thanks. Enjoy your nearly perfect rating with impunity while my family's only hope for justice evaporates, Irwin Law. (Shaking my head)
Customer: replied 1 year ago.
I have no problem grasping and wielding statutory law to argue my case, but I'm completely lost on the procedural side. If I lose, so be it, but I can't even get someone to tell me where the fight is. I believe my window of opportunity closes in 12 days.  Someone...Please help. Just tell me what documents I need to file, and where.  Or at least point me toward the correct building and tell me which counter I need to go to.  It seems like this should be 101 basics for people who claim to do this stuff for a living. I can't be the only person who's ever wanted to challenge the validity of a will and trust in Arizona.
Customer: replied 1 year ago.
I will file a demand for notice, but if she never applies with the probate court, that isn't going to do me any good. I have no idea how to proceed without having a venue determined or an applicant to challenge in probate. If there are other applicants in the next 12 days (or possibly 3 months and 12 days), it appears she will only be required to file an affidavit with the original will attached to avoid probate altogether. Should I simply submit our apparently revoked documents and apply for appointment to representative, therefore starting the probate process and forcing her into that arena?  I don't want to violate any laws, would this be legal?
Customer: replied 1 year ago.
*** That should hage read: "if there are **no** other applicants in the next 12 days..."

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