Probate is the legal process of settling a deceased individual’s estate. In the state of Arizona, the probate process is based on the Uniform Probate Code (adopted by 18 states) and regulated by Arizona Revised Statutes Title 14.
Why is probate necessary?
When someone dies, an individual acting on their behalf (known as a personal representative) will need to ensure the decedent’s outstanding liabilities are settled and their remaining assets are properly distributed. If the decedent has a will, their assets will flow to their beneficiaries based on the instructions in their will. If the decedent doesn’t have a will, their estate is considered “intestate,” and their assets will be distributed to their legal heirs based on the state’s intestate succession laws. Either way, probate is necessary to make sure the decedent’s assets don’t remain frozen in their name or seized by creditors.
What happens in probate?
The actual probate proceedings may vary from case to case depending on the complexity of the estate and contests to the will, but generally speaking there are six steps in the probate process:
- Validate the will
- Appoint a personal representative
- Gather the decedent’s assets
- Settle the estate’s liabilities
- Distribute the remaining assets
- Close the estate
Validating the will
If the decedent has a will, the court will need to validate the document. As long as all of the interested parties waive the right to an initial hearing, this is a quick process taken care of by a clerk when the petition for probate is submitted. In Arizona, a valid will needs to be properly signed and dated by the testator and two witnesses. If the testator physically can’t sign the will, he or she can have a proxy sign on their behalf (ARS 14-2502).
The testator also needed to be an adult of sound mind operating without undue influence at the time the will was drafted. The court will usually assume that those boxes are checked until someone contests the will and says otherwise. Once the interested parties have received notice of the probate proceedings, they’ll have four months to file a will contest with the court if necessary.
Appointing a personal representative
Assuming again that the initial hearing is waived, the individual nominated in the will to serve as the executor will be appointed personal representative by a probate court clerk. Barring any objections or contests, the personal representative will be mostly free to handle the rest of the probate process outside of court. If someone objects to the nominated executor, the court can appoint an administrator instead.
Gathering the decedent’s assets
Before the personal representative can start paying bills and distributing assets, they’ll need to take an inventory of the estate’s assets and determine the fair market value. Liquid assets like bank accounts and brokerage accounts are easy to value with the most recent account statements, but illiquid assets like real estate, vehicles, and personal possessions will probably need to be professionally appraised. If the will specifically bequeaths certain assets, the personal representative will usually set these aside and try to use other liquid assets to settle the liabilities.
Settling the estate’s liabilities
Nobody likes paying bills, but it’s unavoidable here. The personal representative will use estate funds to pay the probate administration costs (court fees, professional appraisals, etc.), funeral costs, debts, taxes, and outstanding bills. The estate will need to file a final income tax return, and an estate/gift tax return if applicable.
Distributing the remaining assets
After all of the liabilities are settled, the personal representative will need to prepare a final accounting and report of their actions. Informal probate cases can proceed with the proposed distribution, but formal supervised probate proceedings will require court review and approval.
Closing the estate
When the estate’s assets have been successfully transferred to the beneficiaries, the personal representative can petition to close probate. This sounds like a nominal action, but it’s a very important step. When the estate is closed, the actions of the personal representative and the court are conclusive and binding.
What happens after probate is closed?
After probate is closed, interested parties have up to six months to file an objection to the personal representative’s actions. If the estate isn’t properly closed, the statute of limitations is extended up to three years from the decedent’s date of passing. That said, it’s extremely difficult to reclaim assets that have been lawfully distributed to beneficiaries. So, even if you file a successful objection, the court may be unable to redistribute the closed estate’s assets.
How long does it typically take to receive your inheritance?
Informal probate can usually wrap up in 4 – 6 months. Formal probate is required when there are will contests or objections, and depending on the level of court supervision the case it could take up to a year or longer to close the estate. Once probate is closed, however, you should receive your inheritance within a matter of days or weeks.
What to do if you suspect a stolen inheritance
Unfortunately, cases of stolen inheritances are not uncommon. In any case where one party ends up with less than what they’re entitled to and another party is unjustly enriched, you should consult with an attorney. Successfully contesting a will is not an easy task, but there are situations where a judge can invalidate a forged, fraudulent, or unduly influenced will. Factors that may result in a successful will contest include:
- There is a more recent version of the will that was meant to replace the previous version
- The will was improperly witnessed
- The testator’s signature or material provisions in the will were forged
- The testator was under duress or undue external influence
- The testator was incapacitated and not of sound mind
- The testator (the person writing the will) is a minor
If you’re reluctant to hire an attorney because they’re too expensive, think again. In cases of stolen inheritances, many attorneys are willing to work on a contingency fee rather than charging an initial retainer fee. If the attorney agrees to work on a contingency fee, they’ll consent to accept their payment as a portion of the final judgement value when the lawsuit concludes (e.g. if you win $10,000, they may keep 30% for services rendered). Not all attorneys work on a contingency fee bases, though, so it’s important to ask in your initial consultation.