Probate is the judicial process in which a will is reviewed to ensure its legal validity, as well as the distribution of assets to the named beneficiaries. The process also includes documenting the property of the decedent, ensuring taxes and debts are paid, and the payment of probate costs. Probate costs include lawyers’ fees, court fees, executor fees, and administrative costs.
If the decedent did not have a will, or has property that is not accounted for in the will, the probate court will ensure that the property is distributed accordingly. The probate process is controlled by state law; therefore, the procedures will vary from state to state. In Arizona, there are three ways in which probate works, whether the decedent died with or without a will: supervised, formal, and informal.
Supervised probate is the traditional way of conducting the probate process. In Arizona, supervised probate proceedings consist of the court overseeing and administrating all aspects of the probate process. This includes opening the estate, approving of attorneys, appointing personal representatives, and taking statements of creditors, among other things.
The difference between Arizona’s supervised probate, and formal probate, is that formal probate is only partially supervised. Because of the amount of court involvement, supervised probates are generally more expensive. However, since Arizona adopted the UPC (Uniform Probate Code), the process of probate has become more simple, using fewer judicial resources and time.
Supervised probate is usually requested if an estate presents complex or unusual issues, such as insolvency. It may be requested by any interested person, or by the personal representative at any time. Probate courts usually require this type of probate when necessary to protect an inheritor, creditor, or other interested party.
Formal probate may be required for: complex estates when the validity of the will is in question; when there is a dispute over the appointment of the personal representative; when an asset requires increased court supervision; and/or for other charges and allegations. For example, a beneficiary of the estate may suspect one of the following:
- The personal representative of taking some of the funds;
- An heir of hiding some of the assets; or
- A third party of obtaining the will through deception, undue influence, or coercion.
In such cases where these allegations prove to be legal and true, formal procedures need to be implemented. These procedures include notice to all parties, pleadings, discovery, depositions, motions, and a trial by jury.
As previously stated, the difference between Arizona’s supervised probate and formal probate is that formal probate is only partially supervised. Additionally, formal probates are usually heard by a judge, and may involve one or more hearings before the court.
Informal probate is the most simple, and most common and utilized form of probate in Arizona, and occurs when the will is uncontested. Most probate actions in Arizona are informal. Informal probate provides personal representatives, beneficiaries, and other interested parties with an efficient way to file documents with the court and to administer estates.
The court-appointed personal representative administers the estate with minimal court supervision, and no visits to the courthouse are necessary. An attorney may or may not be necessary. Additionally, the probate is overseen by a judge, the clerk of the court, or a court commissioner who has been designated to oversee and administer informal probates.
Only specific people can file for an informal probate proceeding. These people include:
- The decedent’s spouse;
- Adult child, parent, sibling, half-sibling, heir, and nominated personal representative as named in the decedent’s will;
- The department of Veterans services, if the decedent is a veteran; or
- A creditor if 45 days have passed since the decedent’s death.
Probate may not always be required. In Arizona, there is no probate if the estate’s value is $50,000 or less for personal property, or $75,000 or less for real estate. There are also many types of assets that don’t need to pass through probate; these assets automatically pass to their inheritors without the oversight of the probate court.
Arizona is a community property state, as such, all property held with a right of survivorship passes to the surviving spouse outside of probate. Further, Arizona allows you to name a transfer-on-death (TOD) beneficiary for securities and vehicles.
Additionally, an owner of real estate may execute and record a TOD deed, allowing property to go directly to the TOD beneficiaries. For the foregoing reasons, these instances do not require probate.
Why would you want to avoid probate? Costs are the main reason. Probate, including attorney’s fees, can be costly. The cost is often due to the amount of time that can be spent in probate, especially if there are multiple parties that may inherit and there is an item the parties are fighting over.
Other reasons include efficiency, privacy, and flexibility. Alternatively, you may wish to pursue probate because you’ll have peace of mind that all matters are settled legally and correctly.
Legal matters concerning wills and estates are complicated. A probate lawyer can provide you with assurance and help you through the oftentimes complicated probate process. Even for simple estates, an experienced attorney will ease the process by helping to file complicated paperwork, avoid common mistakes, and provide probate litigation in the event of a dispute.
If you believe a will is invalid or being unfairly distributed, an estate lawyer near you will help you contest the probate proceeding and help you claim what is rightfully yours.