What is the Probate Process in Arizona?
Understanding how the legal proceedings play out when someone dies
Probate is simply the legal process that occurs when someone passes away. The probate process determines how the estate (the deceased person's money and property) will be administered and distributed to their heirs and beneficiaries. Under Arizona law, a Last Will and Testament must be probated within two years from the date of death. This process can be confusing, and an experienced probate attorney can guide you through it.
The process starts with selecting a personal representative.
The personal representative (or executor) is responsible for administering and managing the estate. If a Last Will and Testament names a personal representative, then the representative named in the Will must file the probate and handle the probate requirements.
If there is no Will or the personal representative named in the Will is unable or unwilling to serve, then the probate court must appoint one. (This is one reason it's a good idea to name an alternate in your Will in case your first choice predeceases you or otherwise is unable to serve.) Arizona law sets the following order of priority for who will serve in this capacity:
- The surviving spouse
- A surviving adult child
- Any other legal heir
- If no one else fills the position after 45 days, a public fiduciary
Usually, the personal representative must file a bond — essentially, a certification that they will perform their fiduciary duty to administer and distribute the estate. This requirement can be waived under certain circumstances.
Once the personal representative is appointed, they must prepare an inventory of the decedent's assets, prepare and file the decedent's final tax returns, assess and pay off any debts and claims made against the estate, and then distribute any remaining assets to the beneficiaries or heirs. If there is a Will, then the personal representative needs to follow the instructions in the Will and distribute assets to the named beneficiaries. If there is no Will, then the personal representative must follow Arizona's intestate succession laws and distribute assets to the legal heirs. If there are no legal heirs at all (a possible but rare occurrence), then the assets in the estate are subject to "escheat" and become the property of the State of Arizona.
Which assets need to go through probate in Arizona?
Not every estate needs to go through probate, and even if some portion of the estate does have to be probated, not every asset is subject to probate. For example, the following types of assets can usually skip the probate process:
- Joint tenancy or community property with right of survivorship. For instance, if a married couple owns something jointly, and one spouse dies, community property with right of survivorship allows their share of the property to pass automatically to the surviving spouse, with no need for probate.
- Any asset that has a named beneficiary, such as a life insurance policy, annuity, retirement account, or investment account with a transfer-on-death designation, is typically transferred directly to the beneficiary with no need for probate.
- Assets in a revocable living trust with a designated successor trustee should remain in the trust without going through probate.
That said, even if most or all of your estate is set up to avoid probate, you still need a "pour-over will" to catch any remaining assets, and probate will be required for that portion of the estate.
Arizona law also allows certain small estates to go through an expedited probate process. For example, you can transfer up to $75,000 in personal property and $100,000 in real property to a single individual or beneficiary by simply filing an affidavit.
What happens if a Will is contested?
Will contests are not particularly common, but they can occur when an heir believes they were unjustly cut out of an inheritance or received much less than they should have. A Will can be contested on the grounds that it did not meet validity requirements, that there was an undue influence during the drafting of the document, that the testator lacked intellectual or testamentary capacity or suffered from an insane delusion, or that the Will is ambiguous. If there is a contest, the court will hold a hearing to determine the validity of the Will, with the burden of proof on the person challenging its validity while the personal representative defends its validity. If the court finds the Will invalid, then the estate follows the intestate succession laws as though the Will never existed.
An experienced probate attorney can prepare you for and guide you through the process.
Ultimately, the best way to handle probate is to have a robust estate plan ahead of time. Effective estate planning may allow your assets to mostly or entirely avoid probate and will make the probate process smoother if it is still necessary at all. If you're dealing with an unexpected probate battle, however, you definitely need an experienced attorney on your side to protect your rights and interests.
Probate can be a difficult and complex process, but you can make it easier with the right counsel. Schedule your consultation with an experienced Arizona probate attorney today.