Probate

The term “probate” is a broad term. It is commonly used to refer to the situation when someone dies with a will, but it can also refer to the situation when a person dies without one. It is the process of gathering and distributing certain property of the decedent.

When someone dies with a will, the first step in the probate process is to apply to the court to admit the will into probate and to appoint a personal representative (who is also sometimes called an executor or executrix). The personal representative is the person who is authorized to transfer property held in the decedent’s name. Typically, the personal representative will be nominated in the decedent’s will. This requires submitting an application to the court.

The next step in the process is for the personal representative to gather all the decedent’s property that is part of the probate estate. An accounting must be done so that creditors can be paid and property can be distributed. Some of the common assets that are not subject to the probate estate are: property held with right of survivorship (including bank accounts and real property), life insurance policies, individual retirement accounts (IRAs), and other various ERISA accounts. Normally, after the personal representative pays the debts and taxes, she will distribute the property to the people named in the will.

There are three different kinds of probate proceedings in Arizona: informal, formal, and supervised. If the will satisfies certain requirements under Arizona law and is uncontested, the will can undergo what is called informal probate. Informal probate is by far the most common type of probate. It requires little to no court supervision and often does not require hearings that must be attended in person. One good way to ensure the availability of the informal probate process is to have a self-proved will. A self-proved will must have both a notarized acknowledgment by the testator and notarized affidavits of the witnesses. If there are questions as to the validity of the will, or if the case presents particularly complex issues, a formal or supervised probate can be requested. Formal probate is essentially litigation about the validity of the decedent’s will. And this process can be more time consuming and costly than informal probate.

The estate planning attorneys at Giordano Spanier & Heckele Law Firm, assist clients over a range of probate issues. Excellence is our standard. Call today for a consultation.