Probate is a court procedure that determines how a deceased person’s (a decedent) estate will be administered. This process identifies and inventories the decedent’s assets and debts, pays the applicable taxes and debts, and then distributes the remainder to any beneficiaries named in a Will or to the surviving heirs. Probate takes place in Arizona’s probate courts.
If the decedent left a Will, he or she usually has nominated a personal representative, Arizona’s version of an executor to administer the Will. That person will be responsible for filing the probate and handling all of the probate requirements.
Under Arizona law, you have two years from the date of the decedent’s passing to probate a Will.
Appointment of the Personal Representative
If a Personal Representative is not named in someone’s Will, Arizona law has an order of priority for who can serve:
- The surviving spouse
- Surviving adult children
- Any other legal heir
- A public fiduciary if no one fills the post within 45-days of the decedent’s passing
A personal representative must generally file a bond unless the Will specifically waives it or all of the heirs or devisees under the Will that did not provide for a waiver file a written waiver. Entities such as trust companies, the public fiduciary, title insurance companies qualified to do business in Arizona, or a national banking association are not required to file bonds.
Even if there is a bond waiver, an interested person may still petition the court for a bond to be filed if there is reasonable proof that the interest of that party is at risk due to the administration of the estate.
Duties of the Personal Representative
The personal representative has a fiduciary responsibility to administer the decedent’s estate in a prudent manner and to avoid any appearances of self-dealing. The duties of a personal representative include:
- Prepare an inventory of the decedent’s assets
- Prepare and file the last tax returns of the decedent and ensure that taxes due and owing are paid from the estate
- Assess the debts and claims made against the estate and to pay those that are valid
- Distribute the remaining assets to the beneficiaries or heirs
If the decedent left a Will, then the personal representative will distribute particular assets to the designated beneficiaries. If there is no Will, then the assets are distributed to the surviving heirs in accordance with Arizona’s law on intestate succession. Intestate succession laws distribute assets pursuant to a priority list of possible heirs, such as surviving spouse, children, parents, and other relatives.
Personal representatives are entitled to reasonable compensation for their services from the estate of the decedent.
Does Arizona Law Require Every Estate to be Probated?
Not every estate needs to be probated. If there are no assets, then no probate is needed usually. The following assets typically do not require probate either:
- Community property with right of survivorship or joint tenancy with right of survivorship on the death of the first joint tenant.
- Life insurance proceeds that named at least one individual as a beneficiary
- Annuities that named at least one individual as a beneficiary
- Retirement plans, pensions and IRAs that named at least one individual as a beneficiary
- Checking and investment accounts with POD (payable-on-death) or TOD (transfer-on-death) designations to at least one beneficiary
- Assets that are part of a Revocable Living Trust
Will contests are more prevalent on television than in real life. Will contests generally occur in estates of substantial value where a disgruntled heir feels he or she was unjustly omitted from the Will or received far less than what the testator (person who made the Will) actually intended. The grounds upon which a Will may be contested include:
- Did not meet validity requirements or there was a defect in the way the Will was signed or witnessed
- There was undue influence on the testator when the Will was drafted
- The testator lacked intellectual or testamentary capacity
- The testator suffered from an insane delusion that affected the dispositive provisions
- A provision was patently ambiguous (testator’s intention is unclear on the face of the Will)
A Will is valid if the testator is at least 18-years of age, signs the document, has two witnesses, and a notary. A handwritten Will is valid if it is signed and dated and all in the testator’s handwriting.
Undue influence refers to an allegation that someone, such as a close associate or relative, managed to overcome the testator’s true intentions regarding the disposition of the estate, usually for that person’s benefit.
Medical testimony is needed if there is a claim that the testator lacked intellectual capacity or suffered from an insane delusion at the time the Will was signed.
Small estates can go through informal or summary probate or avoid it altogether. For instance, Arizona law allows you to transfer up to $75,000 in personal property and up to $100,000 in real property if it is to a single individual or beneficiary by filing an affidavit. For personal property, you must wait 30-days after the property owner passes. For real property, the waiting period is 6-months.
Probate can be a complicated process. Consult with Sue Sandy, an experienced probate lawyer, about the probate laws and how they affect your estate or the estate of a loved one.