When a person passes away, their assets must be disbursed according to their estate plan and, when applicable, state laws and probate. At Duffield Adamson & Helenbolt, our probate lawyers help executors of Wills or beneficiaries of an estate through the probate process. Starting with identifying estate assets and ending with the distribution of assets and inheritances to the beneficiaries. Contact us by either using the online form or calling us directly at (520) 792-1181 to schedule a consultation and learn more.
What Constitutes Probate in Arizona?
Probate is the process by which a deceased person's assets and belongings, known as their estate, are passed on to their heirs and successors. It depends on your jurisdiction, but most matters related to wills, estates, conservatorships, and guardianships are handled by probate courts.
Both the probate process and outcomes can look very different, depending on whether the decedent had a valid Will at the time of death.
The Early Stages of Probate
The probate process begins when the decedent passes away. A petition or application is filed with the proper court to have the probate opened. The next step is to identify the executor, called a personal representative in Arizona, of the decedent's estate.
- If there is a Will, a personal representative will likely be nominated in the will. A person nominated in the Will is not the official personal representative until they have been appointed by the court.
- If there is not a Will, a probate judge will appoint a personal representative. Arizona law provides an order of priority of who may serve as personal representative.
Once the personal representative is appointed by the court, the personal representative must:
- Notify the heirs and devisees. The heirs are the closest living family members. The devisees are the persons named in the Will;
- Publish notice in the newspaper for any creditors and/or directly mail notice to creditors;
- Take inventory of the estate (e.g. bank accounts, retirement accounts, stocks and bonds, real estate, personal effects); and
- Secure all assets.
How probate proceeds depends on whether there is a Will or not.
Probate with a Will
If the decedent died with a Will, the original Will should be found, filed with the court, and authenticated before its terms are put into action. This process can often proceed informally when there is no question of who will serve as personal representative and all parties are in agreement. However if there is any question as to the validity of the Will or who is requesting to be appointed, then a court hearing may be necessary where the heirs and devisees are in attendance. During this hearing, an interested party may contest the Will.
If there are no challenges to the Will and the court has admitted the Will to probate, the executor must collect the probate assets, pay off all debts of the estate, and ensure that all required tax returns have been filed and paid. Once the creditors and expenses of administration are paid, the personal representative distributes the remainder to the beneficiaries in accordance with the Will.
If the Will is challenged, then another hearing may be set. The challenger has the burden to prove the Will's invalidity. Challenges are often based on allegations of undue influence, fraud, or misrepresentation. Challenges are also brought forward when there is believed to be another Will invalidating the Will offered to probate court.
If the court decides the Will is valid, the personal representative can pay debts, bills, and applicable taxes, and distribute assets. If the court decides the Will is invalid, it will apply the state's intestacy laws. On the other hand, if the court determines the other Will is valid, it will allow the personal representative to apply the valid Will (as opposed to the invalid Will).
Probate without a Will
If there is no Will, the decedent is said to have died intestate. This does not mean their assets will not be inherited, it just means their property will pass to their heirs through their state's intestacy laws.
Once the personal representative has located all the decedent's assets,notified and paid the creditors, and has filed all necessary tax returns, the probate judge will apply the state's laws of intestacy and distribute the estate to the decedent's heirs.
The End Stage of Probate
Once debt and bills are paid and the remaining assets are distributed, the personal representative will submit receipts and records of everything to the court. At that time, the personal representative will ask the court to close the estate and release the individual from the role of personal representative.
Do You Need a Probate Lawyer in Southern Arizona?
Whether you need a probate lawyer depends on how well the estate plan was set up. Regardless, a probate lawyer offers important services that can help speed up the probate process. A probate lawyer can help with the:
- Collection of proceeds from life insurance policies
- Identification and securing of estate assets
- Appraisals for the decedent's real property
- Payment of bills, debts, and applicable taxes
- Resolution of any income or estate tax issue
- Preparation and filing of all documents required by a probate court
- Management of the estate checking account
- Transfer of assets to beneficiaries
Contact a Probate Lawyer in Arizona Today
We are here to help you with your estate plan so that it survives any challenge during probate. If you are the personal representative or beneficiary of an estate, we can also guide you through the probate process. If you have questions, contact Duffield Adamson & Helenbolt either online or at (520) 792-1181 to schedule a consultation with our estate administration lawyer today.