Thank you for visiting PowersNeal.com to learn some basics about wills and probate. First, let’s define both wills and probate:
A will is a document which states who should inherit a person’s property after passing, who should administer their estate during a probate matter (the “personal representative”), and who should serve as the guardian for minor children (if any).
Probate is the process by which a decedent’s estate is administered by the Court.
Wills and probate both deal with the disbursement of a decedent’s assets. The will says who will get what, and probate governs the process.
If the decedent has a valid will, the will determines how the decedent’s estate will be transferred during probate and to whom. If the decedent does not have a will, or dies partially intestate, where only part of the decedent’s estate is covered by a valid will, the Arizona laws of intestate succession determine who gets what parts of the decedent’s estate.
Wills and Probate: What is a Probate?
Clients often ask, “how does a probate work?” and “What is probate?” In Arizona, as in most states, the probate court has specific jurisdiction over the probate process. And, the ultimate objective of the probate court is to assure that the personal representative (1) pays decedent’s debts, (2) transfers assets to decedent’s beneficiaries, and (3) maintains his or her fiduciary obligations to the heirs and devisees in the process.
Probate consists of the following steps: (1) appointment of decedent’s personal representative; (2) notifying heirs of the personal representative’s appointment; (3) notifying creditors, (4) inventorying decedent’s property, (5) paying the decedent’s final expenses and taxes, and finally, (6) distributing decedent’s estate to the heirs and devisees. Let’s look at these six steps.
- Appointment of the personal representative
A personal representative, also known as an executor in some states is the person responsible for administering the estate during a probate proceeding. This person is ordinarily named in the will. However, if (i) there is no will, or (ii) there is a will but no personal representative is named, or (iii) the named personal representative in the will is unable to serve, the Court will appoint someone. Others who may serve include the surviving spouse of the deceased, devisees named in the will, and other heirs. Read more about personal representatives and priority for appointment in our article Personal Representative FAQ.
Whoever is chosen, the personal representative will be given official rights by the court, called the Letters of Personal Representative which authorizes the individual to administer the decedent’s estate.
- Notifying heirs and devisees
Upon appointment, the personal representative must notify all heirs, devisees and other interested persons about the application filed to open probate and the personal representative’s appointment.
- Notifying creditors
In Arizona, the personal representative must send a notice to every known creditor and publish a notice to creditors in a local publication. This notifies interested parties about estate’s probate and enables persons who think they have an interest in the estate (such as creditors) to file a claim against the estate within a specified time period.
- Inventorying the property
The personal representative must gather and inventory all of the decedent’s property. The personal representative must then value the decedent’s property, hiring qualified appraisers if necessary.
- Paying final expenses
After determining the value of estate and types of assets available, the personal representative must then settle all of the decedent’s final debts and expenses. This includes filing the decedent’s final tax return.
- Distributing the estate
Finally, as the last step in the probate process, the personal representative will distribute the decedent’s property to the heirs and devisees.
How Powers & Neal Can Help with Wills and Probate
A valid Will can simplify the probate process. First, it specifies who should inherit what property, which provides guidance to heirs who may have otherwise wanted to fight over a particular asset. Second, it names the person the will maker (testator) wants to serve as personal representative. We often see disputes between persons who want to serve as personal representative and have equal authority under the law to serve (e.g. children disputing who should administer a parent’s estate). Third, it may waive the bond otherwise required to be posted by a personal representative.