Probate is the judicial procedure by which a decedent’s estate is handled through the appointment of a Personal Representative (some states use the term “Executor”). As mentioned on our Probate page, a probate is not always required to handle a decedent’s affairs. Many times, the decedent will not leave behind the kinds of property requiring a Probate, or perhaps the decedent utilized a Trust or other estate planning tool that make a Probate unnecessary.
However, should you find yourself in the position where Probate is required, this article provides a rough outline for the standard Probate process. In certain cases, summary Probate proceedings are available which are not addressed by this article.
The first step in the Probate process is to determine if there is a Will or not. You will need to gain access to the decedent’s important papers to determine if there is a Will or perhaps the decedent made known to you a copy of his/her Will beforehand.
If for any reason you cannot gain access to the decedent’s important papers, you may have to proceed to file for appointment of a Special Administrator to obtain the permission necessary to search through the decedent’s important papers. The Special Administrator appointment is outside the scope of this article – but a competent Phoenix Probate Attorney can assist with this. See A.R.S. 14-3614 et seq.
After determining whether or not there is a Will, the next step will be to determine if you may proceed with a formal or informal Probate opening. Arizona permits informal or formal proceedings at each of the different stages of a Probate, depending on the needs of the Probate estate, making it a flexible system. Often, you can begin an estate informally.
Where the estate is testate (with an original valid Will), you can proceed to file an Application to have the Will Probated. Where the estate is intestate (without a Will) you can also proceed with an informal Application if all the heirs are agreeable to the person who will serve as personal representative.
Where the estate is testate but some issue about the Will or the appointment of a Personal Representative is or expected to be contested, then you will likely need to file for a formal Probate of the Will. Similarly, where the estate is intestate, and the heirs are not agreeable about the estate or who will serve as the Personal Representative, then you will likely need to file a formal Petition to get the Estate opened.
Opening an estate can become prolonged where there is litigation on one or more of these kinds of issues (i.e. who should be appointed as the Personal Representative, determining whether the Will is valid, challenges to the Will, which Will is valid where there are multiple competing Wills, etc). An experienced Phoenix Probate Attorney can help you navigate these issues.
After the appointment of a Personal Representative (and acceptance of the Will where there is a testate estate), the decedent’s estate will need to be administered. This involves locating, collecting and protecting all the decedent’s assets, and a determination of all of decedent’s existing liabilities.
The decedent’s assets and liabilities are often found by going through the decedent’s important papers, through personal knowledge that a surviving spouse or children have of the decedent’s assets, through public records, and the like. Assets will be held by the Personal Representative during the time creditors are permitted to make claims against the estate, and until tax issues are resolved for the decedent and the estate. Assuming that the decedent’s assets exceed the decedent’s liabilities, then these assets will need to be distributed.
The length of administration will vary depending on any number of issues. For instance, the decedent may have been involved in litigation at the time of his death. It will be up to the Personal Representative to determine whether or not to continue this litigation. If there is an expectation that the estate will receive money from this litigation, the estate may have to stay open for quite some length of time until the litigation is complete. Perhaps the decedent owned assets that are difficult to sell such as raw land in remote locations. Other issues include resolving tax issues, locating missing heirs, difficulty collecting decedent’s assets, difficulty obtaining records, etc.
When the administration of the Probate estate is concluded, it is finally time to distribute the remaining assets to the persons or organizations entitled to them. Again, the flexible system permits the estate to close formally or informally. Most probate cases will close informally. Informal closings are done by filing a Closing Statement, usually sharing an accounting of the administration of the estate with the heirs and/or devisees and distributing the assets. In the case where the estate is insolvent, creditors will need to be included in the accounting. If you need to close formally, a Petition will need to be filed, which will include an accounting, and a proposal for how distribution should be made. All potential distributees will need to be provided a copy of the Petition and notice of the hearing that will be set to consider the Petition. Potential distributees can file written objections and/or appear at the hearing to testify. Following the hearing, the judicial officer will sign an Order and the Personal Representative will make distributions according to that Order. See A.R.S. 14-3931 et seq
As stated above, this is a rough outline of the Probate process. Each Probate will vary depending on the facts of each case. Platt & Westby is experienced in Probate administration and litigation and can capably, professionally, and knowledgeably guide you through this difficult time. Please call us to schedule a free consultation.
Platt and Westby, P.C. has offices in Phoenix and Gilbert, Arizona.