For those grieving a deceased family member, the reality that a loved one is gone is often hard to fathom. And many are stunned again when they realize they must set aside their grief to navigate the legal system. Specifically, they must go to court and resolve the decedent’s property and financial issues.
Probate can be complicated, so consider having a trusted attorney or professional executor at your side. But before making any decisions, understanding the process can make it easier as you go forward.
Is Probate Necessary?
In Maricopa County, the Probate and Mental Health Court handles probate cases. The court usually has more than 20,000 cases pending, and 500 cases are filed each month.
In light of numbers such as those, people often assume that probate is automatically a long, drawn-out process. However, Arizona has tried to ease the probate’s burden in several ways.
First, under Arizona law, small estates—defined as those with less than $75,000 in personal property and less than $100,000 in real estate—may be able to skip probate by submitting an affidavit to the court, asserting that all of the estate’s assets have been transferred to the decedent’s successor.
Even if an estate is larger, probate can still be scaled down if the decedent had made arrangements to transfer most of their property to successors in ways that don’t require probate. For example, if they held property in joint tenancy—so the property automatically transfers to the other owner—or if they transferred assets into an irrevocable trust.
If it is required, there are three forms of probate: Informal Probate, Formal Probate, and Supervised Probate.
Informal Probate
In informal probate, there is no controversy surrounding the distribution, so a designee can distribute the estate’s proceeds with little-to-no court supervision.
The estate’s personal representative file forms with the court to prove that they fulfilled the required functions, but, along the way, they essentially function independently.
Informal probate is usually completed within six-to-eight months.
An estate may be eligible for informal probate if:
- the decedent left a will
- the will was correctly executed and is uncontested or
- there is no will, but the heirs are not contested and
- the designed person in the will (or heir if there is no will) agrees to be the estate’s personal representative
Estates may also be eligible for informal probate if they’ve already been through formal probate in another state.
To begin informal probate, the designed person (or heir) must complete a short training program. Then the personal representative must file the required forms and an “informal probate” checklist with the court:
- A probate cover sheet
- A declaration they’ve completed the required training
- An application for the appointment
- A statement of informal appointment
- Letters of appointment
- An acceptance of appointment
- An order designating the personal representative
- Acknowledgment and Information to Heirs
Additionally, if there is a will, additional documents must be filed: the original will; waivers of the right to appointment and consent; a waiver of bond; a notice of application; and proof of mailing the notice.
The court’s probate registrar will review the documentation and notify the representative within 72 hours if the application has been approved.
Within ten days after the appointment, the personal representative must notify the heirs of the appointment and provide them with copies of the will and other information. The representative must also notify creditors and publish a related notice in the newspaper.
Within 90 days, the personal representative must obtain an inventory and appraisal of the estate’s property. They then must send a copy to all of the heirs and interested parties, or they must file a copy and then notify any interested parties that the inventory is available at the court.
The personal representative can then distribute the property to the heirs and pay creditors. Once they have done so, they file a final notice and remaining documentation with the court to conclude the probate process.
Formal Probate
Formal probate is required if the court concludes that the estate is ineligible for informal probate. Reasons a court might order formal probate include:
- If there are issues relating to the will’s validity,
- if the will is being contested,
- If any heir or interested party requests formal probate
Given the additional complexity of the issues and court involvement, formal probate must last at least four months—to allow creditors time to respond—and can take a year or more to complete.
Once again, probate begins when a petitioner files forms with the court—a probate cover sheet and a petition either for formal probate and appointment as personal representative or a petition for determination of the heirs.
The petitioner will receive a date for a hearing and must send the hearing notices to all interested parties.
During the hearing, the court will receive evidence and testimony relating to the issues at hand. The probate court will then issue its findings and orders, including formally appointing the estate’s personal representative. The personal representative must accept this appointment and declare that they have completed the relevant training.
Through subsequent proceedings (e.g., depositions and hearings), parties will present evidence and legal arguments for the court to render the necessary decisions and determine the distribution of the property.
As with the informal probate, the personal representative will need to file closing statements with the court once the estate’s assets have been distributed.
Supervised Probate
There is also a third form of Arizona probate: supervised probate.
In this probate, the judge supervises the distribution of the estate’s property, related sales, and other transactions. Supervised probate is rarely used, but it is available upon request. Typically, it is only used when the estate’s debts are larger than its assets.
Whether you have recently lost a loved one and need help going through probate, or you would like help with your own estate planning, contact our office (by phone at: 602-548-3400) for a confidential consultation with one of our attorneys. Don’t wait. Call today.
Brian Winter is a family law and probate administration and litigation attorney in Phoenix, Arizona. Mr. Winter is a partner with Stewart Law Group with offices throughout Arizona. The firm has helped many clients navigate the legal complexities of estate planning, wills, and probate.
