Benjamin Franklin is credited with coining the phrase that the only things certain in the world are death and taxes. This saying has stood the test of time, because it’s true. Dissolving and legally distributing the assets of an estate to the beneficiaries is called the probate process.
1. What is Probate?
The probate process in Arizona is the act of legally passing assets from a deceased person to his or her beneficiaries with or without a Last Will and Testament. The process refers to period of time when a probate court supervises someone’s estate.
2. What is Required for a Valid Will Under Arizona State Law?
In order for a Last Will to be valid in Arizona, it must be in writing. It needs to be signed and witnessed by 2 witnesses. The Will also need to be notarized. A.R.S. § 14-2502.
A Last Will can also be valid if it is handwritten. A handwritten Last Will cannot be witnessed or notarized. A handwritten Last Will can work in a pinch, but is not a solid part of a good estate plan.
3. What are the Types of Arizona Probate Proceedings?
There are two main types of probate processes in Arizona, informal and formal. Fortunately, most Arizona probates are informal. Informal probates tend to be less expensive than formal probates and generally do not require any court hearings. Formal probates, on the other hand, tend to be more complicated. If a probate was needed and not filed within 2 years of someone’s death, or if a Will is contested, formal probate is required. Formal probate includes at least one court hearing. In a contested formal probate, there are several court hearings, depositions, motions and discovery, just like in any other litigation. Costs skyrocket quickly.
4. What is the Probate Process in Arizona?
When someone dies, and a probate is necessary, the following steps take place. The Personal Representative (executor) files up to 11 documents with the Court Clerk. Once the Court Clerk approves the probate, the Personal Representative begins the process of paying bills, collecting assets, selling assets and distributing assets. The Personal Representative also publishes notice in the newspaper that a probate has been filed. The Personal Representative will have other paperwork to complete for the probate between the start and finish of the process. As long as the probate is an open case, any member of the public can review the file at the court house or online.
5. What is the Difference Between Testate and Intestate?
If an Arizona resident dies and leaves a valid Last Will, this person is said to have died “testate”. If an Arizona resident dies without a valid Last Will, that person is said to have died “intestate”. If someone dies without a valid Last Will, the probate laws dictate who gets what. Generally, the law follows bloodlines.
6. Is Probate Always Necessary?
Probate is not always necessary. However, probate is unavoidable if you have not done any planning ahead of time.
7. Can You Avoid the Probate Process?
In short, yes. There are 3 main ways to avoid probate. One of the most popular ways is to use a Revocable Living Trust. Assets that are connected to a Revocable Living Trust avoid probate automatically. Second, owning property as joint tenants with right of survivorship means that when the first member of the joint pair dies, the other member owns property 100%. Probate is not needed to make this happen. Third, naming beneficiaries on your assets means those assets automatically avoid probate.
8. If a Will is Probated, is it Available to the Public?
Yes. Once a probate is filed, everything filed in that case is available to anybody. This means that the content of the Will is public along with personal information about the person who died and the Personal Representative (executor). The Personal Representative’s address, phone number, email, Social Security Number, height and weight are all public information.
9. How Long Does It Take to Complete An Arizona Probate?
If the probate is uncontested and is informal, most probates last between six to eight months depending on how quickly the Personal Representative (executor) completes the required duties. By law, probates need to be kept open for at least 4 months so creditors can stake their claims, if any.
10. How is the Probate Process Completed?
After the Personal Representative (executor) pays all of the deceased person’s bills, sold or distributed all of the assets, filed a final tax return for the deceased person and taken care of all of the deceased person’s affairs, the Personal Representative can close the probate. This requires filing one more document with the Court Clerk.