By Abigail Neal, Arizona Probate Attorney
How is an Informal Probate Started?
1. Determine if you are the appropriate person to serve as personal representative and complete training
Pursuant to A.R.S. § 14-3301, only the following people may initiate an informal probate:
1. The surviving spouse of the decedent.
2. An adult child, a parent, a brother or a sister of the decedent.
3. A person who is an heir of the decedent.
4. A person nominated as a personal representative by a probated will or the will for which probate is asked or pursuant to a power conferred by the will.
5. If the decedent was a nonresident, any person who is qualified under paragraphs 1 through 4 (above) or a personal representative appointed in the state of domicile or the nominee of such personal representative.
6. If the decedent was a veteran, the department of veterans’ services.
7. 45 days after the death of the decedent, any creditor.
8. If no one listed in 1-7 above is willing or able to serve, the public fiduciary.
There is an order of priority as to who may serve as personal representative. In order of priority:
1. The person with priority as determined by a probated will including a person nominated by a power conferred in a will.
2. The surviving spouse of the decedent who is a devisee of the decedent.
3. Other devisees of the decedent.
4. The surviving spouse of the decedent.
5. Other heirs of the decedent.
6. If the decedent was a veteran or the spouse or child of a veteran, the department of veterans’ services.
7. 45 days after the death of the decedent, any creditor.
8. The public fiduciary.
A personal representative may not be:
1. Under the age of 18.
2. A person whom the court finds unsuitable in formal proceedings.
3. A foreign corporation.
Determine if there are any other people who are entitled to be personal representative, who are the likely persons who will inherit property under the will or via intestate succession, who are the creditors of the estate and who has priority to be appointed as personal representative. If there is anyone else who could be personal representative (per the order of priority above) ask them if they are willing to sign a Waiver of Appointment and will agree to your appointment as personal representative. If they do sign the Waiver, mail the Waiver to all heirs, devisees and other interested persons.
Once the the identify of the personal representative is determined, the proposed PR will need to complete the required training module for personal representatives found at www.azcourts.gov/probate/Training.aspx.
2. Complete the Application for Informal Appointment
The Application for Appointment is the primary document that will open the probate. The Application must request that a personal representative be appointed and that the decedent’s will (if any) be entered into probate. If the decedent left a will, the original will must be attached to the Application for Appointment.
3. Determine the value of the decedent’s estate
Talk to the people who are entitled to inherit property under the will or who will inherit the property under the laws of intestate succession. Ask those people if they are willing to have you act as personal representative without a bond. If they are, ask them to sign a Waiver of Bond. If a Waiver of Bond is signed, mail a copy of all heirs, devisees and other interested persons. (Remember, a bond will be required unless it is waived in the will, or waived in writing by all heirs if there is no will or by all devisees if there is a will.) If a bond is required, it will need to be stated in the Application.
4. File documents to initiate an informal probate
Complete the Probate Cover Sheet. File the Cover Sheet, Application and original will (if any) with the Superior Court and pay the filing fees.
5. Provide notice of Application
Complete a Notice of Application in Informal Proceeding, and mail it to all heirs, devisees and other interested persons, along with a copy of the filed Application for Appointment. If you cannot find everyone that is entitled to notice, you must publish the notice in a newspaper in general circulation, once a week for three consecutive weeks. If you publish, get the Affidavit of Publication back from the newspaper who published the Notice.
6. Complete the Proof of Delivery or Mailing of Notice of Application
This document states that the personal representative has mailed or delivered the notice to any person who filed a written demand for notice with the court and any person who would have a prior or equal right of appointment as personal representative.
What Happens After the Application is Filed?
Once you have filed the Application and given notice as required above, file the following documents with the court:
1. A copy of the filed Application for Appointment.
2. Waiver of Right to Appointment as Personal Representative and Consent to Appointment of Personal Representative (if any).
3. Waiver of Bond (if any).
4. Notice of Application in Informal Proceeding.
5. A Proof of Delivery or Mailing Notice of Application in Informal Proceeding.
6. Affidavit of Publication (if you had to publish).
7. A Statement of Informal Appointment of Personal Representative. The probate registrar will sign the statement confirming that the personal representative has been appointed.
8. Letters of Appointment of Personal Representative and Acceptance of Appointment as Personal Representative. If the personal representative is approved, this document will be signed by the clerk of the court.
9. Order to Personal Representative. This document will be signed by the court when the personal representative is appointed and the probate is opened. This is a court order that will require the personal representative to:
A. Gather, control and manage estate assets.
B. Act as a fiduciary to the estate, beneficiaries and creditors.
C. Provide Notice of Appointment.
D. Provide notice of admission of will to probate.
E. Mail copies of the Order to Personal Representative.
F. File proof of compliance.
G. Publish Notice of Appointment.
H. Protect the assets of the estate.
I. Determine statutory allowances.
J. Inventory assets of the estate.
K. Observe applicable standards of care.
L. Keep detailed records.
M. Pay valid debts and expenses.
N. Pay taxes.
O. Distribute remaining assets.
P. Notify the court of a change in the personal representative’s address (if applicable).
Q. Payment of personal representative.
R. Involve the court if necessary.
S. Close the estate.
If the court determines that an informal probate is appropriate and the personal representative who applied should be named, the court will sign the Statement of Informal Appointment, submit the will for probate (if there is a will), issue the Letters of Appointment and sign the Order to Personal Representative.
How Does the Probate Process Work Step by Step?
Depending on the type of probate, the process can work in a step by step linear fashion in an informal probate. A formal probate may be quite a bit messier since there may be litigation thrown into the mix. This can mean that under each step listed below, include the words “then litigate” after each step. Generally, an informal probate follows the following steps:
1. An application must be made to the court to open the probate and appoint the personal representative. If the decedent left a will, the application must also request that the court probate the will (determine the will’s validity).
2. Once appointed, the personal representative must give notice of his or her appointment as personal representative to all heirs, devisees and other interested persons.
3. Publish the notice to the creditors in a newspaper for the required amount of time and send the notice to any known creditors.
4. Locate and collect all of the assets owned by the decedent. The personal representative can but is not required to take possession of the assets.
5. Once the assets are collected and located, the personal representative must inventory the assets and determine the value of each asset. Once complete, the personal representative may file the inventory with the court or send copies to all heirs, devisees and other interested parties.
6. Determine if any taxes are owed by the decedent or the estate, pay the taxes and prepare and file the decedent’s last tax return.
7. Distribute the assets of the estate to the persons entitled to the assets (either under the decedent’s will or pursuant to the laws of intestate succession).
8. Close the probate by filing the closing statement.
6. Prepare and file any necessary federal, state and local tax returns and pay any taxes owed by the decedent and the estate.
7. Distribute probate assets as provided in the Will (for testate estates) or as provided in the Arizona laws of intestate succession (for deceased persons who do not have a valid Will).