Probate refers to the formal court process by which a person’s assets are to be distributed upon their death, according to their will. The probate process involves a series of filings and hearings presided over by a probate judge. Probate may be required if the deceased died without complete estate planning and owned more than $100,000 in real property or more than $75,000 in personal property.
Important stages in the probate process include:
- Proving that the decedent’s will is legal and valid
- Identifying and appraising estate assets
- Managing the payment of any debts or taxes owed by the deceased person’s estate
- Carrying out the deceased person’s instruction about the distribution of their estate to their heirs, including distributing real estate and personal property as defined by either the will or state law.
The probate process begins with a petition in the local probate court by the executor, who is the person designated in the will to handle the distribution of the estate. If the will did not name an executor, one will be appointed by the court. A hearing will be scheduled, and notice of the hearing will be sent to any named beneficiaries, which informs them of the date, time, and location of the hearing.
If the decedent did not have a will or has property not accounted for in the will, the probate court will ensure that the property is distributed accordingly. The probate process is controlled by state law; therefore, the procedures will vary from state to state. In Arizona, probate works in three ways, whether the decedent died with or without a will: supervised, formal, and informal.
What Is Supervised Probate?
Supervised probate is the traditional way of handling probate. In Arizona, supervised probate proceedings consist of the court overseeing and administering all aspects of the probate process. This includes opening the estate, approving attorneys, appointing personal representatives, and taking statements of creditors, among other things. The difference between Arizona’s supervised probate and formal probate is that formal probate is only partially supervised.
Because of the extensive court involvement, supervised probates are generally more expensive than other types. Notably, however, since Arizona adopted the UPC (Uniform Probate Code), the process of probate has become simpler, using fewer judicial resources and time.
Supervised probate is usually requested if an estate presents complex or unusual issues, such as insolvency. Probate courts usually require this type of probate to protect an inheritor, creditor, or other interested party.
Supervised probate may be requested by any interested person or by the personal representative at any time.
What Is Formal Probate?
Formal probate may be required for:
- Cases where the validity of the will is in question;
- When there is a dispute over the appointment of the personal representative;
- When a complex asset requires increased court supervision; or
- For other charges and allegations. For example, a beneficiary of the estate may suspect one of the following, and determining the outcome requires court intervention:
- The personal representative is believed to be taking some of the funds;
- An heir is suspected of hiding some of the assets or
- A third party was granted assets through the will using deception, undue influence, or coercion.
In such cases, formal procedures need to be implemented. These procedures include notice to all parties, pleadings, discovery, depositions, motions, and a trial by jury.
As previously stated, the difference between Arizona’s supervised and formal probate is that formal probate is only partially supervised. However, a judge usually hears formal probates, and may involve one or more hearings before the court.
What Is Informal Probate?
Informal probate is Arizona’s simplest and most commonly utilized form. Informal probate occurs when the will is uncontested. Informal probate provides personal representatives, beneficiaries, and other interested parties an efficient way to file documents with the court and administer estates.
The court-appointed personal representative administers the estate with minimal court supervision, and no visits to the courthouse are necessary. An attorney may or may not be necessary, depending on the case. The probate process is overseen by a judge, the clerk of the court, or a court commissioner designated to oversee and administer informal probates.
Only specific people can file for an informal probate proceeding. These people include:
- The decedent’s spouse;
- An adult child, parent, sibling, half-sibling, heir, or the nominated personal representative as named in the decedent’s will;
- The U.S. Department of Veterans Services, if the decedent was a veteran; or
- A creditor if 45 days have passed since the decedent’s death.
The administration typically involves inventorying and appraising the estate for the heirs, disclosing and paying all creditors, filing a final set of taxes, and distributing the estate under the terms of the will.
When Is Probate Not Necessary in Arizona?
Probate may not always be required. Arizona has no probate if the estate’s value is $75,000 or less for personal property or $100,000 or less for real estate. That may sound like very little, which would force many, many estates to pass through probate. That is not the case because many types of assets don’t need to pass through probate; these assets automatically pass to their inheritors without the oversight of the probate court.
Examples of these assets include:
- Property held in joint tenancy, which is usually property owned by both spouses (a home or bank account, for example)
- Retirement accounts such as IRAs and 401ks;
- Living trust assets;
- Payable-on-death bank accounts;
- Contracts;
- Cases where Arizona allowed the deceased to name a transfer-on-death (TOD) beneficiary for securities and vehicles; and
- Cases where the deceased is the owner of real estate and has recorded a TOD deed, allowing property to go directly to the TOD beneficiaries.
In addition, Arizona is a community property state. This means that married couples own almost all of their assets together, and their property is held with a right of survivorship. It passes to the surviving spouse outside of probate.
Once these assets are subtracted from the overall estate, the decedent’s remaining assets may fall beneath the $75,000 and $100,000 limitations.
Are There Reasons to Avoid Probate?
Why would you want to avoid probate? The biggest advantage to avoiding probate is cost. Probate can easily cost from 3% to 7% or more of the total estate value.
Another advantage to avoiding the probate process is that the process can be complicated and time-consuming. Since probate proceedings can take up to a year or two to completely resolve all matters related to the decedent’s estate, the assets are typically “frozen” until the court decides on the distribution of the property. Avoiding the process can help resolve matters more quickly and efficiently.
An additional advantage to avoiding the probate process would be privacy. Wills and probate proceedings are matters of public record. If you would prefer to keep your affairs private so that people who are not involved do not know how your estate was distributed, you will need to distribute your estate through joint tenancy or some other estate planning mechanism.
On the other hand, you may wish to pursue probate because you’ll have peace of mind that all matters are settled legally and correctly.
Should I Consult an Attorney in Arizona for Issues with Probate?
Legal matters concerning wills and estates are complicated. An Arizona probate lawyer can provide you with assurance and help you through the elaborate, intricate, and complex probate process. Even for simple estates, an experienced attorney will ease the process by helping to file complicated paperwork, avoid common mistakes, and provide probate litigation in the event of a dispute.
If you believe a will is invalid or being unfairly distributed, an estate lawyer near you will help you contest the probate proceeding and help you claim what is rightfully yours.
