What is Probate in Arizona?

When someone who owns property dies, a court procedure called probate may be required.  Most adults have heard of probate but few understand exactly what the process is and why it may be necessary in a particular case.  This article answers some of the common questions about the probate process in Arizona.

Who is Responsible for Estate Administration in Arizona?

In an Arizona probate, the court appoints an administrator of the estate, referred to as the personal representative.  In some states the administrator is referred to as the executor.

Normally, if there is a Will, the person named in the Will to serve as the personal representative will be appointed by the court.  If there is no Will, or if the person named in the Will is unable to serve, a family member of the deceased can petition the court to be named as the personal representative. 

When is Probate Required in Arizona?

Generally speaking, the need to probate a decedent’s estate is usually due to property, whether financial or real estate, remaining in the name of the person that died.  There are other reasons giving rise to probate, but by far the usual cause of probate is when property remains titled to the person that died, and that property needs to be distributed to the persons entitled to receive it.

One way to think of probate being triggered is that there is property looking for a place to go.  On the other hand, property that passes to a surviving joint owner or to a death beneficiary typically will not give rise to probate.  That is because such property has a place to go as soon as a Certificate of Death establishes that a surviving joint owner or death beneficiary has become entitled to the property at issue.

When there is no surviving joint owner or death beneficiary of property, then the legal procedure of probate may be required to transfer the property to those entitled to it, either pursuant to a decedent’s Will or by what is called intestate succession.  A Will is the instrument by which a person designates who should receive their property after their death.  A deceased person is said to be intestate if that person died without leaving a valid Will.

What Happens if a Person Dies Without a Will in Arizona?

What if someone in Arizona dies owning property but there is no surviving joint owner, no death beneficiary, and no Will?  How does anyone know who is entitled to such property?

Arizona has laws generally referred to as the intestacy statute, which establishes what is referred to as intestate succession.  The statute lays out what people are entitled to a decedent’s estate, in what order and in what share when the decedent did not leave a Will.  The intestate law is located in Arizona Revised Statutes, Title 14, Chapter 2.  The sections of Intestate Succession and Wills begins with section number 14-2101 and can easily be accessed online.

The intestacy statute is designed to be a commonsense determination of who is entitled to a decedent’s property when there is no Will to decide it.  For example, if someone dies leaving a surviving spouse, and the decedent had no children by anyone except the surviving spouse, then the decedent’s estate would go to the surviving spouse.  That is probably what most people would consider a logical result.

What if the Intestate Decedent Left a Surviving Spouse and also Had Children with a Previous Spouse?

Again, the intestate statute provides what most people probably would consider a fair result.  Basically, the surviving spouse would be entitled to half of the estate left by the decedent, and the other half would go to the children of the previous spouse.

What Are the Priorities in Arizona Probate Court for Asset Distribution?

When probate of a decedent’s estate is conducted in the probate court, distribution of the estate is largely determined by a valid Will if there is one, or by the intestacy statute if there is no valid Will.  However, in a probate there are other considerations besides what a Will or intestacy determine.

There are priorities as to how the assets of the decedent’s estate may be paid out.  Arizona Revised Statutes section number 14-3805 lays out a priority of claims.  For example, costs and expenses of administration come first.  That makes sense because otherwise, the probate system itself could break down.  The second priority is reasonable funeral expenses.

It will not be surprising that debts and taxes with preference under federal law are next.  The statute lists a total of six priorities, the last three in order being: medical and hospital expenses, debts and taxes with preference under state law, and finally all other claims.  It is all other claims that include the persons entitled to the decedent’s estate by Will or intestate succession.

What is the Probate Filing Fee in Arizona?

There are common misunderstandings about the probate procedure.  One is that the state receives a substantial part of the estate.  That is false.  Generally, all that is payable to the State of Arizona is the probate filing fee, which at the time of this writing is only $204.00. 

How Long Does the Probate Process Take in Arizona?

Another misconception is that probate is sure to take a long time.  The truth is that if a particular decedent’s estate is not complicated or extended due to business of the estate, an informal probate procedure can be over for the most part in five months or a little less.  The probate process for complicated or contested estates, however, can take much longer.

What is an Informal Probate Procedure Versus a Formal Probate Procedure in Arizona?

An informal probate, simply put, does not involve the active participation of a judge.  Judges become involved when there are decisions in probate that only a judicial officer is authorized to make. 

For example, when an original Will is filed with the court, it is usually possible to have an informal probate.  However, if only a copy of a decedent’s Will is available to be filed at court, then a judge must rule on admission of the copy, making at least that portion of the case formal.  Informal probates are generally less complicated, with the result that informal cases tend to be quicker and less expensive.

Arizona Revised Statutes section numbers 14-3301 and 14-3401, respectively, lay out what is involved in informal versus formal probate procedure.

What Notification Must Be Given in an Arizona Probate?

One of the requirements of probate, whether informal or formal, is publication of notice to creditors.  Arizona Revised Statutes section number 14-3801 includes requirements of notice to both known creditors and other creditors generally.  The statutory guidelines for creditor notice are a good example of legal procedure that must be observed in probate cases.

It is probably mostly such procedural requirements that trip up persons who attempt to conduct probates without the involvement of legal counsel.  Probates are not merely a simple matter of filing forms with the court.

Call Wood Law Firm to Learn More About How the Firm Can Help You With Probate

To most people, the prospect of conducting a probate case can seem daunting.  However, with the assistance of an experienced probate attorney the process can be much less stressful than expected.

If you have questions about probate, or are tasked with serving as a Personal Representative, please call the Wood Law Firm. With many years of practice helping personal representatives, the Firm has the experience to help you throughout the entire probate process, including answering your questions, making the necessary legal filings, and ensuring that you understand all of the tasks that need to be completed to fulfill your obligations. 

For further valuable and informative materials, go to: http://www.azcourts.gov/probate/Training.aspx

View either the video or PDF of both:

Personal Representatives Training Module; and

Serving as a Non-Licensed Fiduciary