Probate Defined

Probate almost always occurs in situations both with or without a Will being in place before somebody passes.  A Last Will and Testament (LWT) will specifically designate an Executor or Personal Representative who will be authorized to transfer the Decedent’s assets to pay Creditors first, then to “Beneficiaries,” specified in the document.  If there is no LWT in place, then that person will have been deemed to have died Intestate (i.e., no Will).  If a person is found to be Intestate, then a “Administrator” is chosen, and Beneficiaries inherit assets based on a hierarchy known as “Intestate Succession” per Arizona statute.  If there are no relatives who step forward to act as the Administrator, then a Creditor can open Probate and be appointed as the Administrator.

A proper Last Will and Testament (LWT) will contain the following four (4) instructions:

1. It will designate a specific Executor or Personal Representative to pay all Creditors and Final Expenses, file a Final Tax Return, and Distribute all Assets properly.
2. It will contain a Personal Property Disposition List (PPDL) and will direct who gets certain personal effects such as family heirlooms; certain pieces of jewelry or watches; artwork; antique furniture; and things of that nature.
3. The proper LWT will also designate an Alternate Guardian to Minor Children (just in case the Primary Guardian becomes incapacitated, dies, or chooses not to take on those duties).
4. Lastly, if the LWT is really well done, it will waive any type of Bond Requirement to the Executor or Personal Representative.  The reason for this waiver is that the subject of the Will implicitly trusts the person who they have designated as Executor or Personal Representative.

Five Types of Probate

1. Small Estate Probate Process.

A simplified probate process exists for Small Estates if the Decedent owned Real Property that was worth less than $100,000 (either land or a house), and Personal Property does not total more than $75,000, and there are not Unpaid Wages that exceed $5,000.  In order to accomplish this, multiple Small Estate Affidavits will need to be filed based on property type.  For example, an MVD Affidavit for the Arizona Department of Transportation would be necessary if there are vehicles or trailers which involve ownership transfer.  It is important to have all of the proper Affidavits filed, and all the Summary Administration Procedures followed correctly, otherwise the Estate can still end up in a more detailed Probate Process.

2. Informal Probate Process

Informal Probate Process is the most common form utilized in Arizona.  In order for this to occur, the terms of the Last Will and Testament (LWT) must allow the Probate Court Registrar to Appoint an Executor/Personal Representative.  This person is normally listed in the LWT.

Usually, all of the heirs agree on the choice of the Executor or Personal Representative.  Also, there cannot be any challenges to the LWT’s validity, or to the Executor or Personal Representative’s performance.  The benefits of Informal Probate are that they require minimal supervision by the Court and that they are low cost.  This process still requires extensive paperwork to be completed, so best practices would be to have an Attorney assist you with the paperwork and the Process. 

3. Formal Probate Process

The Formal Probate Process usually occurs if the Last Will and Testament (LWT) cannot be found, or if there’s a Challenge to the LWT due to some type of irregularity.  Irregularities are usually found in older and outdated Wills.  Other Challenges can include cases in which minors are involved who are designated as “Heirs,” or if a Formal Objection to the designated Executor or Personal Representative is lodged.

The Formal Probate Process usually requires additional Hearings and supervision by the Court, and this requires more time and expense than an Informal Probate Process.  Once all issues are resolved by the Court, then the Executor or Personal Representative can finalize the Estate without supervision.

4. Supervised Probate Process

The Supervised Probate Process is usually required if it is specifically called for in the Last Will and Testament (LWT).  This process is also utilized if supervision is deemed necessary by the Court in order to protect the interests of a Creditor, an Heir, or another legally interested party.  Additionally, the Supervised Probate Process is used in situations where an Estate is “Insolvent.”

During the Supervised Probate Process, the Court will oversee all the steps undertaken by the Executor or Personal Representative during their tenure.  It is always wise to utilize an Attorney if your situation involves the Supervised Probate Process.

5. Contested Probate

Contested Probate is sometimes referred to as Estate and Probate Litigation.  This will always require the services of an Attorney.  Some of the most common reasons leading to Litigation include:  Contested Wills; Outdated Wills or Missing Papers; Multiple Wills; Divorced Spouses and Insurance Issues; claims of Incapacity and/or Undue Influence; Unlocated Assets; Executor or Personal Representative Abandonment, or claims of Misdeeds or Mistakes.