Probate is the legal process of settling and distributing someone’s estate when they die. While it’s common for family members to delay probating a loved one’s will until after they’ve had time to grieve, it’s important to initiate the probate process in a timely manner. Generally speaking, the party in possession of the will should submit the will to the probate court within 30 days of the decedent’s passing. The statute of limitations for probate gives you up to two years to probate a will but waiting longer than 30 days may leave you liable for civil lawsuits from the will’s beneficiaries. If you’ve deliberately withheld the will for financial gain, you may even face criminal charges.
Who can petition to open probate?
In most situations, the individual who has been nominated to be the executor will submit the will to the county court and file a petition to open probate. That said, any interested party can petition for probate, including family members, friends with a beneficial interest in the estate, and even creditors.
What is included in the petition for probate?
A standard petition will include the original copy of the will, the names and addresses of family members and beneficiaries, an inventory of the decedent’s assets, and the petitioner’s request to be appointed the personal representative. When the court approves the petition and opens probate proceedings, the petitioner will be required to serve notice of the initial probate hearing to all interested parties.
Who will handle the probate responsibilities on behalf of the decedent’s estate?
If the decedent’s will named an executor, this individual will serve as the estate’s personal representative throughout the probate process. If the decedent did not have a will, or if the will is invalidated by a judge, the court will appoint a qualified family member to serve as the personal representative. When necessary, the court can also appoint a third-party special administrator to manage the estate’s affairs.
What if the decedent didn’t have a will?
When someone dies without a will, or if their will is invalidated by a probate judge, their estate will be distributed through probate according to the state’s intestacy laws. In Arizona, intestate succession tends to favor spouses and children (ARS 14-2102). In the absence of a spouse or children, the decedent’s parents, siblings, and extended family members may claim some or all of the estate (ARS 14-2103). In rare cases where there are no family members to claim the estate, the state can step in and seize the assets (ARS 14-2105).
How long does the probate process take?
As long as there are no contests to the will or objections to the actions of the personal representative, informal probate usually wraps up in 4 – 6 months. In these cases, the personal representative is mostly free to probate the estate without court supervision. When the estate is ready for the final distribution, the court will approve the distribution and close the estate.
Formal probate is required when there are contests or objections. These cases will involve varying levels of court supervision, but they will almost certainly take significantly longer than informal probate. Formal probate cases may take up to a year to complete, and it’s not uncommon to see highly supervised cases require even longer.
What happens in probate?
After the probate court appoints a personal representative, there are 4 important steps in the probate process:
- Validate the will
- Gather the decedent’s assets
- Settle the estate’s liabilities
- Distribute the residual assets
Validating the will
To be considered a valid will, the last will and testament needs to be properly signed and dated by the testator (the decedent), signed and dated by two witnesses, and drafted by an adult who is of sound mind (ARS 14-2502). The will also can’t be drafted under duress or undue influence. While many states don’t recognize handwritten wills (known as holographic wills), Arizona accepts them as long as the signature and material provisions of the will match the testator’s handwriting.
In most cases, the will is quickly validated during the same initial hearing that appoints the personal representative. If there are any questions as to the will’s authenticity the judge can summon the will’s witnesses, the testator’s physicians (for psychological evaluation), and family members or friends who knew the testator’s circumstances and state of mind.
Gathering the decedent’s assets
Before the personal representative begins to liquidate and combine assets it’s important to have an accurate accounting of the estate’s assets. Liquid assets like bank accounts and investments are easy to value with the most recent account statements, but illiquid assets such as real estate, vehicles, and collectibles will need to be professionally appraised to determine the fair market value.
Settling the estate’s liabilities
Most people have at least a few final bills and debts to take care of before their estate can transfer assets to their beneficiaries. Administrative fees take precedence (court costs, legal fees, appraisals, etc.), as do funeral and burial costs. Once these obligations are covered, debts such as credit cards and personal loans are due in full. After that, the personal representative will need to file a final tax return, as well as an estate/gift tax return (if applicable). Last of all are outstanding bills, collection accounts, and any other remaining liabilities. If there are not enough assets to cover all of the liabilities, the estate is considered insolvent and the beneficiaries will not receive any gifted assets.
Distributing the residual assets
Once all of the decedent’s liabilities are settled it’s time for the best part—distributing the assets. Any items that are specifically bequeathed in the will shall be transferred directly to the beneficiary. After that, the personal representative will liquidate the remaining assets and distribute the residual value according to the allocation percentages and directions in the will. Probate concludes when all of the assets are distributed, at which point the court will formally close the estate.
Is it possible to bypass probate?
There are two ways an estate can bypass probate. First, small estates are eligible to skip probate if the estate has less than $75,000 in personal property and less than $100,000 in real estate. Qualifying small estates can be settled and distributed outside of probate court with simple rubber-stamp approval by the court. To do this, you’ll need to file a small estate affidavit with the county probate court.
The second way to skip probate is to transfer your assets into a living trust before you die. Trusts are complex legal instruments and they aren’t suitable for everyone, but they can be extremely beneficial when used correctly. Any assets transferred to a trust will automatically transfer to the trust’s beneficiary when the grantor dies. Where probate can take 4 – 6 months, trusts can transfer assets to a beneficiary in a matter of days or weeks.