What Is Probate?
Probate can mean a number of things:
- Filing the deceased person’s Last Will and Testament with the court and proving that it is valid.
- The acts of the personal representative (the person who oversees the process – either named in the Will or appointed by the court) to administer the decedent’s estate. This includes but is not limited to gathering the decedent’s assets, paying the decedent’s debts, completing the decedent’s last tax return and distributing the decedent’s property to his or her heirs. In other states, a personal representative is called an executor, executrix or administrator.
- Anything else the probate court has jurisdiction over. In Arizona, this includes guardianship and conservatorship proceedings. Such proceedings are required for persons who are unable to care for themselves including minors (people under the age of 18), the elderly, and people who are mentally ill.
Key Probate Terms
Administration: The probate process of handling the deceased person’s estate. This includes gathering the assets of the deceased, paying any debts owed by the deceased, dealing with the deceased’s creditors, paying any taxes owed by the deceased and filing his or her final tax return and distributing the assets of the deceased to the persons named in his or her Will or pursuant to the laws of intestate succession.
Application: A written request for an order of informal probate or appointment as personal representative in an informal probate. A.R.S. § 14-1201(2).
Decedent: The person who died.
Devisee: A devisee is a person designated in a Will to receive property. This is different than an heir. A.R.S. § 14-1201(14).
Estate: An estate includes the property owned by decedent or the decedent’s Trust. As it relates to the decedent’s spouse, the estate includes only the separate property and the share of the community property belonging to the decedent. A.R.S. § 14-1201(17).
Executor/Executrix: Same thing as a personal representative. Some states use this terminology, but Arizona uses the term personal representative.
Heirs: A person’s heirs are those persons who are entitled to the decedent’s property under the laws of intestate succession. A.R.S. § 14-1201(25).
Interested Person: An interested person includes any trustee, heir, devisee, child, spouse, creditor, beneficiary, person holding a power of appointment and other person who has a property right in or claim against a trust estate or the estate of a decedent. Interested person also includes a person who has priority for appointment as personal representative and other fiduciaries representing interested persons. A.R.S. § 14-1201(28).
Intestate: The term for a person who died without a Will, or died with a Will that wasn’t valid under Arizona law. When someone dies intestate, their assets will pass pursuant to Arizona’s laws of intestate succession.
Intestate Succession: The laws that state who should inherit the property of a deceased person if that person did not have a Will.
Personal Representative: The person responsible for administering the estate of the decedent. Sometimes this person is called an executor/executrix or administrator. A.R.S. § 14-1201(40).
Registrar: An official of the court designated to perform the functions of registrar. A.R.S. § 14-1201(46). The acts and orders performable by the registrar shall be performed by a judge, the clerk of the court, a court commissioner or any of such at the selection of the presiding judge of the county designated by the court by a written order filed and recorded in the office of the clerk of the court. A.R.S. § 14-1307.
Testacy Proceeding: A proceeding to establish a Will or determine intestacy. A.R.S. § 14-1201(56).
Testate: The term for a person who died with a valid Will. In this case, their property will pass pursuant to the distribution provisions in their Will.
Testator/Testatrix: A person who makes a Will. Testator refers to a male while Testatrix refers to a female.
Are There Different Types of Probate Proceedings?
Yes. Arizona law permits three different types of proceedings: informal, formal and supervised. The best case scenario is an informal probate. This usually involves estates where everyone gets along and there is no one contesting a Will or who should get what. An informal probate is more like an administrative process, and is quicker and less expensive than a formal or supervised probate. However, in cases where everyone doesn’t get along or someone contests the validity of a Will, a formal probate may be required. Formal probate is more like litigation with attorneys (and their fees), hearings, motions, discovery, depositions and possibly even a trial. A supervised probate is a hybrid of an informal and formal probate. While it is generally similar to an informal probate, a judge must oversee and sign off on certain things like selling property or distributing the deceased person’s assets.
What Is an Informal Probate?
An informal probate is a probate proceeding in the Arizona Superior Court that is overseen by a registrar (see above). Of all the types of probate proceedings, an informal probate has the least level of court supervision. This means that an informal probate can be completed faster and for less money than a formal or supervised probate. An informal probate is conclusive to everybody unless superseded by an order in a formal testacy proceeding. A.R.S § 14-3302.
What Is a Formal Probate?
A formal probate is a proceeding in Superior Court to determine whether the decedent left a valid Will. This process is called a “testacy proceeding”. This can be started by an interested person filing a petition that asks the court, after notice and hearing, to enter an order probating a Will, set aside an informal probate of a Will, to prevent informal probate of a Will that is subject to a pending application, or for an order that the decedent died instate. A petition may seek a formal probate of a Will regardless of whether the same or a conflicting Will has already been informally probated. A formal probate proceeding may also involve a request for appointment of a personal representative.
While a formal probate is proceeding, the registrar shall not act upon any application for informal probate of any will of the decedent or any application for informal appointment of a personal representative of the decedent. Unless a petition in a formal probate proceeding also requests confirmation of the previous informal appointment of a personal representative, a previously appointed personal representative, after receipt of notice of the commencement of a formal probate proceeding, must refrain from exercising his or her power to make any further distribution of the estate while the formal probate is pending. A petitioner who seeks the appointment of a different personal representative in a formal proceeding also may request an order restraining the acting personal representative from exercising any of the powers and requesting the appointment of a special administrator. In the absence of a request or if the request is denied, the commencement of a formal proceeding has no effect on the powers and duties of a previously appointed personal representative other than those relating to distribution. A.R.S. § 14-3401.
How Does a Formal Probate Begin?
A formal probate begins when an interested person files a petition:
- Petitions for formal probate of a Will, or for adjudication of intestacy with or without request for appointment of a personal representative, must be directed to the court, request a judicial order after notice and hearing and contain additional statements as indicated below. A petition for formal probate of a Will must:
- Request an order as to the testacy of the decedent in relation to a particular instrument which may or may not have been informally probated and determining the heirs;
- Contain the statements required for informal applications as stated in paragraph 1 of subsection B of section 14-3301 and the statements required by subdivisions (b) and (c), paragraph 2 of subsection B of section 14-3301; and
- State whether the original of the last will of the decedent is in the possession of the court or accompanies the petition. If the original will or a certified copy of a will probated in another jurisdiction neither is in the possession of the court nor accompanies the petition, the petition also must state the contents of the will, and indicate that it is lost, destroyed or otherwise unavailable.
- A petition for adjudication of intestacy and appointment of an administrator in intestacy must request a judicial finding and order that the decedent left no will and determining the heirs, contain the statements required by paragraphs 1 and 4 of subsection B of section 14-3301 and indicate whether supervised administration is sought. A petition may request an order determining intestacy and heirs without requesting the appointment of an administrator, in which case, the statements required by subdivision (b), paragraph 4 of subsection B of section 14-3301 may be omitted.
Although Section B of A.R.S. § 14-3301 applies to informal probates, this information must be contained in a petition to start a formal probate. Section B of A.R.S. § 14-3301 reads as follows:
- Every application for informal probate of a will or for informal appointment of a personal representative, other than a special or successor representative, shall contain the following:
(a) A statement of the interest of the applicant.
(b) The name and date of death of the decedent, the decedent’s age, the county and state of the decedent’s domicile at the time of death, the names and addresses of the spouse, children, heirs and devisees and the ages of any who are minors as far as known or ascertainable with reasonable diligence by the applicant.
(c) If the decedent was not domiciled in the state at the time of the decedent’s death, a statement showing venue.
(d) A statement identifying and indicating the address of any personal representative of the decedent who is appointed in this state or elsewhere and whose appointment has not been terminated.
(e) A statement indicating whether the applicant has received a demand for notice, or is aware of any demand for notice, of any probate or appointment proceeding concerning the decedent that may have been filed in this state or elsewhere.
(f) A statement that the time limit for informal probate or appointment as provided in this chapter has not expired either because two years or less have passed since the decedent’s death, or, if more than two years from death have passed, that circumstances as described by section 14-3108 authorizing tardy probate or appointment have occurred.
- An application for informal probate of a will shall state the following in addition to the statements required by paragraph 1 of this subsection:
(a) That the original of the decedent’s last will is in the possession of the court, or accompanies the application, or that a certified copy of a will probated in another jurisdiction accompanies the application.
(b) That the applicant, to the best of the applicant’s knowledge, believes the will to have been validly executed.
(c) That, after the exercise of reasonable diligence, the applicant is unaware of any instrument revoking the will, and that the applicant believes that the instrument that is the subject of the application is the decedent’s last will.
What Is a Supervised Probate?
A supervised probate is a hybrid of an informal probate and formal probate. A supervised probate is a probate proceeding that administers the settlement and administration of a decedent’s estate under the authority of the court. A supervised personal representative is responsible to the court, as well as to the interested parties, and is subject to directions concerning the estate made by the court on its own motion or on the motion of any interested party. Except as otherwise provided below, or as otherwise ordered by the court, a supervised personal representative has the same duties and powers as a personal representative who is not supervised. A.R.S. § 14-3501.
Unless restricted by the court, a supervised personal representative has all powers of a personal representative except that sales of real property shall be subject to court approval. In addition, the personal representative cannot exercise his or her power to make any distribution of the estate without prior order of the court. A.R.S. § 14-3504.
How Does a Supervised Probate Begin?
A petition for supervised probate may be filed by any interested person or by a personal representative at any time or the request for supervised probate may be joined with a petition in a formal probate proceeding. If the testacy of the decedent and the priority and qualification of any personal representative have not been adjudicated previously, the petition for a supervised probate shall include the matters required of a petition in a formal probate proceeding and the notice requirements and procedures applicable to a formal probate proceeding apply. If not previously adjudicated, the court shall adjudicate the testacy of the decedent and questions relating to the priority and qualifications of the personal representative in any case involving a request for supervised administration, even though the request for supervised administration may be denied. A.R.S. § 14-3502.
How Long Does a Probate Take?
Depending on the type of probate action (informal, formal or supervised), a probate can take anywhere from five months to two years. Typically, if a probate is simple, the heirs are not fighting, the assets of the deceased are known and can be easily located, and taxes on the estate, if any, are easy to figure out, the estate will probably settle in about six months. Part of the reason for this is because creditors have up to four months after being noticed to file a claim against the estate. Despite this, once a personal representative is appointed he or she has immediate authority to start administering the estate. If the personal representative knows there are creditors of the estate, he or she may want to wait until the four month time frame expires before distributing the assets of the estate. However, if there are no outstanding debts owed on the estate, the personal representative should feel comfortable distributing the assets before the four month time frame passes.
Who Is a Personal Representative?
The personal representative is the “representative” of the estate. This person is often called an executor in other states. Regardless of whether the proceeding is formal, informal or supervised, the following people may serve as personal representative, in order of priority:
- The person with priority as determined by a probated will including a person nominated by a power conferred in a will.
- The surviving spouse of the decedent who is a devisee of the decedent.
- Other devisees of the decedent.
- The surviving spouse of the decedent.
- Other heirs of the decedent.
- If the decedent was a veteran or the spouse or child of a veteran, the department of veterans’ services.
- 45 days after the death of the decedent, any creditor.
- The public fiduciary.
A personal representative cannot be:
- Under the age of 18.
- A person whom the court finds unsuitable in formal proceedings.
- A foreign corporation.
Learn more about who can serve as personal representative, personal representative’s duties, personal representative’s bond and whether its required, and compensating personal representatives on our Personal Representative FAQ.
What Are the Personal Representative’s Duties?
The PR is responsible for administering the estate, including gathering the assets owned by the decedent, paying the debts of the estate, paying any taxes owed on the estate and distributing assets to beneficiaries. Learn more on our Personal Representative’s Duties page.
Does the Personal Representative Need to Post a Bond?
A bond is required of a personal representative unless either:
- The will expressly waives the bond.
- All of the heirs if no will has been probated, or all of the devisees under a will which does not provide for waiver of the bond, file with the court a written waiver of the bond requirement. A duly appointed guardian or conservator may waive on behalf of his ward or protected person unless the guardian or conservator is the personal representative.
- The personal representative is a national banking association, a holder of a banking permit under the laws of this state, a savings and loan association authorized to conduct trust business in this state, a title insurance company which is qualified to do business under the laws of this state, a trust company holding a certificate to engage in trust business from the superintendent of financial institutions or the public fiduciary.
- The petition for formal or informal appointment alleges that the probable value of the entire estate will permit summary procedures under section 14-3973 and the surviving spouse, or the nominee of the surviving spouse, is applying for appointment as personal representative.
Read more about personal representatives and posting bond.
Is a Probate Always Required?
Not necessarily. Some assets are not subject to probate, like life insurance policies, IRA’s, 401k’s and other assets that pass pursuant to a beneficiary designation. However, for assets that are subject to probate, a probate proceeding is not always required. Arizona law permits property to pass for “small estates” in certain situations. For real property, the value of the property must be less than or equal to $100,000. For personal property, the value of the property must be less than or equal to $75,000. Learn more about small estate transfers for real property and personal property.
Does a Last Will and Testament Avoid Probate?
No. A probate is required to transfer assets pursuant to a Last Will and Testament since the assets must be transferred out of the name of the deceased person into the names of the deceased’s devisees. However, there is still a significant benefit to having a Will, including that you can name a guardian for your children, a conservator to manage their assets, a personal representative to administer your estate and a distribution plan for your assets.
Can I Plan Ahead to Avoid Probate?
Absolutely. A Revocable Living Trust can avoid probate if properly funded. During a person’s lifetime, they create a Revocable Living Trust and transfer all of their property out of their own name and into the name of the Trust. Then, when the person dies there are no assets remaining in the person’s name. This means no probate would be necessary to transfer those assets out of the deceased person’s name and into the name of the person’s heirs. Learn more about how a Revocable Living Trust can help you avoid probate.
How We Can Help
We can help in two ways:
1) Before someone passes we can prepare an estate plan with a Revocable Living Trust that can be used to avoid probate if done properly.
2) After someone passes we can prepare your small estate affidavits, affidavits terminating joint tenancy or handle your entire un-contested informal probate.
We charge flat fees for most of our services. We have found that clients like knowing the cost before they hire us. We want to give you the peace of mind that you know everything will be handled by a professional you can trust for a reasonable fee. Call Arizona estate planning and probate lawyer Abigail Neal today at (480) 699-7992 to get started.
Learn more about Arizona probate law.