Much has been written by estate planning attorneys as to how to avoid probate. It is true that drafting of estate planning documents with a goal of probate avoidance is of great value to families. But sometimes a probate is needed or can be useful. Here are a few of the benefits of the probate procedure:
- The most important benefit is that a probate provides a court supervised procedure. This encourages a timely and more formal administration of the estate. It also provides a framework within which a duly appointed personal representative can have subpoenas issued, investigate the assets and debts of the estate, recover assets, collect money owed to the estate, and challenge disputed claims. ARS 14-3701 lists some of the duties of a personal representative.
- In administering a probate estate, a personal representative is held to the same fiduciary standard as a trustee including the duty to account. ARS 14-3703. This provides a measure of protection to the estate beneficiaries or heirs.
- The Court is available to help a personal representative in estate administration. Where a dispute arises between the beneficiaries or heirs as to a particular action proposed by the Personal representative, the P.R. can submit the matter to the Court for guidance by filing a Request for Instructions. Similarly, when a claim involving the estate is to be settled, the P.R. can notice the settlement to all beneficiaries and heirs and ask the Court to approve the settlement. See ARS 14-3951 and ARS 14-3952.
- A probate requires notice of important actions to be given to all interested persons including heirs and beneficiaries. ARS 14-3306. By keeping families informed, it is less likely that disputes will arise. When disputes do arise, the Court can assist is solving them. Among many other things, a probate judge can determine the validity of a will, determine who is most qualified to act as personal representative, set bonds for the protection of estate heirs or beneficiaries and determine who qualifies as an heir or beneficiary. The Judge can also enter orders to protect the property of the state, compel its sale, direct the P.R. to take action or refrain from action, require the P.R. to account or, in an extreme case, remove the P.R. and appoint another.
- Through probate, assets of the estate can be transferred to a surviving spouse and children free from the claims of creditors through statutory exempt property and family allowances. ARS 14-2401 et. seq. Estate assets can also be protected from creditor’s claims per ARS 14-3801 et. seq. which provides a procedure for a four month notice period within which a creditor must submit its claim or be barred from collection.
As can be seen, Probate can be a helpful tool where there is limited knowledge about the assets or debts of an estate or where disputes exist among heirs or beneficiaries. A probate can protect estate assets for the benefit of a surviving spouse and children.
While this article discusses some of the benefits of a probate, it is general in nature and is not intended to be exhaustive. Issues can be complex and it is best to speak with a knowledgeable attorney to learn of your legal rights and best options.
Platt & Westby, P.C. has offices in Phoenix, Scottsdale, Avondale, Arrowhead and Gilbert, Arizona.