THE PROBATE PROCESS DEFINED
The Probate Process Defined
Probate Process –
Probate is the legal process through which the Court reviews the Last Will and Testament of someone who has died (the “decedent”) and determines its authenticity. If there is no Will (“intestate”), then statutory rules govern who gets what. Probate is necessary if the decedent’s estate has real property with equity of $100,000 or more or equity in excess of $75,000 in personal property. A probate is initiated by filing an application with the Court to probate the Will. It is also necessary to file with the Court an application for appointment of a Personal Representative. The Personal Representative is the gender neutral term for what used to be called an “Executor” (or “Executrix” for females). The Probate process in Arizona involves at least one of the following approaches: 1) Informal Probate or 2) Formal Probate
Informal Probate Process –
Informal Probate requires minimal Court supervision and no hearing. A Court Officer (called a Registrar) may act without a hearing to validate the Will. The Registrar may also appoint a personal representative and close the estate. This process usually takes six months to a year. The Will must have “self proving” provisions to qualify for the informal probate process.
Formal Probate Process –
Formal Probate involves more complexity and actual in-Court proceedings in front of the Probate Judge or Commissioner. Legal issues related to the Will typically trigger Formal Probate, including such issues as whether or not the Will is valid, differing interpretations of the Will, or fights among heirs over who will serve as Personal Representative. This process almost always takes more time than informal probate and requires more money in attorney’s fees.
The Probate Registrar takes care of the judicial duties and administrative functions of the Probate Court. Probate documents are filed with the Probate Registrar, and routed to the Judge or Commissioner as needed or required.
Personal Representative –
The Personal Representative is the individual named in the Will or determined by statute in the absence of a Will, who is placed in charge of administering the estate. The Probate Judge, Commissioner, or Probate Registrar must appoint a Personal Representative (PR). The Court appoints the PR in a document called “Letters of Appointment.” These letters legally authorize the PR to act in the name of the Decedent. A PR is a fiduciary. This means the PR has a duty not to act with bias for or against the beneficiaries and creditors involved with the estate. The PR also has a duty to protect the assets of the estate. The following people (over 18 years of age) may be considered for Personal Representative:
Person named as personal representative by Will
Surviving Spouse of the decedent
Adult Child of the decedent
Parent of the decedent
Brother or Sister of the decedent
Person entitled to property of the decedent
A Creditor if at least 45 days have lapsed since decedent’s death
Waiver and Consent –
Individuals who have any right to appointment as Personal Representative may sign a notarized waiver (Waiver of Appointment as Personal Representative and Consent to the Appointment of Personal Representative) and give their permission for another person to act as PR. This doesn’t mean that individual will be appointed as PR because interested persons may still contest the appointment. Such waiver and consent must be sent to all interested persons (see below) to let them know what’s going on.
Although who gets appointed as PR can be contested, it is generally in the best interest of all concerned for the parties to come together and agree upon who should serve as PR.
Probate Bond –
Probate proceedings may or may not require a bond. If required, the PR must post a certain amount of money as bond (sometimes referred to as a “Probate Bond”; also “Executor Bond” or “Administrator Bond”). For example, if the estate is worth $500,000 a surety may sell a bond for approximately $1,500 to the PR, which the PR purchases with estate funds. The bond operates as a type of insurance for the beneficiaries of the estate against the PR’s failure to meet their fiduciary obligations. If the PR fails in their fiduciary duty to protect the assets of the estate, causing a decrease in the value received by the beneficiaries, the beneficiaries can bring a claim against the bond. If the surety decides it’s a valid claim, the surety reimburses the heirs for damages and goes after the PR for reimbursement on what the surety paid out to the beneficiaries.
Bond Waiver –
Often, the Last Will and Testament includes a bond waiver provision that waives the bond requirement. The beneficiaries of the Will collectively have the power to waive the bond requirement as well. They do this by completing a bond waiver form and submitting it to the Probate Court.
Requiring a bond is the statutory default. There are circumstances where a bond is both appropriate and even necessary. However, in many instances it is just an unnecessary expense. The parties to a probate should carefully consider whether their circumstances require a bond. If so, proceed. If not, tell the Court they don’t need it by submitting a bond waiver.
A “Decedent” is a person who has died and left behind an estate.
An Estate consists of the assets and liabilities left by a person at death. This includes all their money and property, all land and real estate, possessions, financial securities, cash and other physical and tangible assets, collectibles and furnishings.
The “Probate Estate” is only those assets subject to probate. The “Taxable Estate” includes other assets that may pass outside of probate through a Trust or beneficiary designation or otherwise. Often people use the word “Estate” to refer generally to both the Probate Estate and the Taxable Estate. Using the same word for two different things can sometimes cause confusion.
Letters of Appointment in Probate Process–
The Letters of Appointment or “Letters Testamentary” are documents issued by the Probate Court stating the name of the individual authorized to act on behalf of the Decedent in the administration of his or her affairs. It also includes limitations, if any, related to the appointment.
A person legally entitled by blood, adoption or marriage to the property or rank of another upon that person’s death.
Someone who receives real property (as opposed to personal property) from the estate of another.
Interested Persons –
Interested Persons are heirs, devisees, children, spouse, creditors and others having a property right in or claim against the estate. Additionally, persons having a priority for appointment as personal representative qualify as interested persons:
Person who has filed a Demand for Notice with the Court
Personal Representative of the decedent who has a current appointment
Parents, Brothers and/or Sisters of the decedent
Person named as an heir in the Will of the decedent
The author wrote this article to provide information regarding the Arizona probate process. It does not include all available probate information.
Do I Need an Attorney in Probate?
The law does NOT require representation by an attorney in the probate process. The Court’s provide self help forms, and in simple cases a non-attorney can take care of a probate just fine. At the same time, there are Court rules and requirements that must be followed. Failure to do so can have significant consequences. Particularly if there are disputes or complications, the assistance of an attorney in probate is a very good idea if not a necessity.
Probate Law Group offers complimentary initial consultations to help you determine whether or not the assistance of an attorney will be beneficial or necessary. Please call us at 480.535.8000 to schedule an appointment.