Initiate Probate and Prove the Will: The personal representative named in the Last Will and Testament serves as the administrator of the estate. If the person died intestate (without a will) or if the personal representative is unable to serve (for instance, because he or she predeceased the decedent), the court will appoint a personal representative. Once the court has received the personal representative's petition for probate, it must verify that the will is valid before opening the estate. If there is any question about the validity of the will, it's essential that you seek legal counsel immediately.
Letters of Administration: The court then provides the formally appointed personal representative - whether the person named in the Will or otherwise appointed by the court - with letters of administration. These legal documents give the personal representative the authority to handle the deceased person's financial affairs.
Post or Waive Bond: In general, under Arizona law, personal representatives must be bonded, although this requirement may be waived by the heirs and devisees or by the Will itself. However, the court has discretion to modify the bond amount or even waive the requirement entirely, which can expedite the process. That's why it's usually in the personal representative's interest to seek a waiver - and to get an attorney's help.
Provide Notice: Under Arizona law, the personal representative must provide notice to inheritors and creditors within 30 days of death. This process includes publishing notice in a local newspaper and mailing notice to all known creditors. An experienced probate attorney can help the personal representative make sure notice is properly provided at this stage.
Gather and Inventory Assets: The personal representative has the legal right to take possession of all estate property unless otherwise specified in the Will, although he or she also has discretion to leave some items in the hands of people who are entitled to receive them. One of the most important, if not the most important part of the personal representative's job is to provide a detailed and accurate inventory of all estate property. This includes the nature, value and any applicable liens or encumbrance on each item of property, and it must be done within 90 days of the day of appointment.
Pay Taxes: There is no state estate tax in Arizona, but if the estate is valued at $1 million or more, the personal representative is responsible for paying the federal estate tax. In addition, property taxes and other applicable taxes must be paid. One of the key benefits of working with our firm on your probate case is that we have extensive experience in both probate law and tax law. For many of our clients, these insights allow us to minimize tax obligations and preserve more of the estate for the heirs.
Manage and Preserve the Estate: Personal representatives in Arizona have a very high duty of care, called a fiduciary duty, to manage the estate carefully. That means using estate funds for legitimate expenses - such as funeral expenses, court costs and payments to creditors and lenders - but not for frivolous spending. Any breach of this duty of care can cause the personal representative to be liable to the decedent's heirs. That's why it is in the personal representative's interest to consult an experienced probate attorney at each stage in the process.
Set Aside Community Property: If the deceased person was married, the personal representative must make an accounting to set aside any community property - that is, property that belongs to the married couple in equal shares - before transferring the remaining property. Such divisions can be highly complex. In addition to our probate attorneys, our legal team includes an experienced family law attorney who can assist with cases involving community property.
Distribute the Estate Property: Once community property has been set aside, creditors have been repaid and tax obligations have been met, the personal representative then divides and distributes the remainder of the estate. This must be done in accordance with the terms of the Will, or if there is no Will, in accordance with the Arizona Probate Code. The personal representative is also responsible for documenting each transfer of property.
Our experienced probate and estate planning attorneys are ready to advise your family through every step in this process. We have a deep understanding of Arizona probate law, and our breadth of expertise as a firm means we're ready to handle any legal complications that your loved one's death may have created. Contact us online or call 408-378-9000 today.