We are often asked by our clients: what is probate?
Probate is the legal process by which a will is proved valid or invalid and the estate of a decedent is administered. In Arizona, the probate court has special jurisdiction over probate and estate matters. The Probate Court also handles matters involving guardianship, conservatorship, elder fraud, and physical abuse.
What is Probate: Definitions
In answering the question “What is probate?” we should first look at some terms:
Decedent: the person who died.
Personal Representative (“PR”): also known as an executor in some states, the personal representative is the individual charged with administering the decedent’s estate.
Heirs: those persons who are entitled to the decedent’s property pursuant to the laws of intestate succession.
Devisees: those persons designated in the decedent’s Will to receive property.
Estate: the decedent’s estate consists of property owned by the decedent.
Probate Registrar: a court official designated to perform the functions of a registrar. The Probate Registrar oversees some probate actions.
What is Probate – Types of Procedures
In Arizona, there are a number of different probate procedures.
Informal, Supervised and Formal Probate
Informal probate is used if the potential heirs, devisees and permissible personal representatives agree on who will be appointed as the personal representative and how the estate will be administered. In informal probate, the personal representative will petition the probate registrar to appoint the personal representative and accept the will, if there is one. Upon appointment, the PR is then able to administer the estate. Although the process is informal, the PR still must provide notice to creditors and other interested parties as required by law.
Supervised probate is a hybrid formal and informal probate actions. This administration is done under the authority of the court, and the PR is subject to the directions of the court regarding the estate, whether made on the court’s own motion, or by the motion of an interested party. Unless otherwise restricted by the court, the PR in a supervised probate has all of the powers of a personal representative, other than that sales of real property will be subject to court approval. In addition, the PR cannot exercise his or her power to distribute any of the estate without an order of the court.
The formal process starts with an interested party (usually a potential heir, devisee or creditor of the decedent) filing a petition with the probate court asking a judge to: 1) determine the heirs of the deceased; 2) verify the validity of the will; and 3) appoint a personal representative.
More than one petitioner may seek to become the Personal Representative, so after the petitions for formal probate have been filed, the probate court will review them, allow for argument, then appoint a PR. Upon being appointed, the PR will, among other things, gather and inventory the decedent’s assets, paying the decedent’s creditors and final taxes and distribute assets to heirs or devisees. Importantly, PR’s have a fiduciary duty to heirs and devisees, so duties must be performed with care.
When people ask what is probate, they are often the most familiar with the formal probate procedure.
Small Estates – Probate Exemptions
When asked what is probate, we also talk to clients about “small estates” and how probate can be avoided entirely in these situations. If a decedent leaves $75,000 or less in personal property and/or $100,000 or less in real property, the estate qualifies as a “small estate” an may be administered using an affidavit. The affidavit used to collect personal property does not need to be filed with the court, while the affidavit used to collect real property must be filed with the court and recorded in the county in which the real property is located.
What is Probate and Can it be Avoided?
When discussing probate with our clients, we are often asked if it can be avoided. With some careful estate planning, appropriate and strategic use of beneficiary designations and possibly a revocable living trust, probate can be easily avoided for many people.
If you have questions about what is probate and need assistance with your specific situation, please call Powers & Neal at (480) 699-7992.
Learn more about Arizona Probate.