by Richard Keyt, Arizona probate lawyer
The Arizona Probate Process
If after preparing an inventory of the assets of the deceased and performing the title analysis set forth above you determine that there are assets that remain titled in the name of the deceased or assets payable to the estate such as a bank account, investment account or life insurance then a probate will be required unless the estate of the deceased qualifies for one of Arizona’s two small estate exemptions. Probate can be avoided if the following conditions apply to the estate:
- The value of ALL PERSONAL PROPERTY in the decedent’s estate, wherever located, less liens and encumbrances, does not exceed $50,000 as of the date of death. See Arizona Revised Statutes Section 14-3971(B). To learn more about this exemption read my article called “Small Estate Probate Exemption – Personal Property.”
- The value of REAL PROPERTY in the decedent’s estate, less liens and encumbrances, does not exceed $75,000 as of the date of death. See Arizona Revised Statutes Section 14-3971(C). To learn more about this exemption read my article called “Small Estate Probate Exemption – Real Property.”
How to Start an Arizona Probate
If a probate is required then somebody (usually an heir, but not always) called the “petitioner” must prepare and file a probate petition with the Arizona Superior Court in the county in which the deceased resided. Arizona Revised Statutes Section 14-3301.A provides that an “Informal probate or informal appointment may be made only by application of one of the following:
- The surviving spouse of the decedent.
- An adult child, a parent, a brother or a sister of the decedent.
- A person who is an heir of the decedent.
- A person nominated as a personal representative by a probated Will or the Will for which probate is asked or pursuant to a power conferred by the Will.
- If the decedent was a nonresident, any person who is qualified under paragraphs 1 through 4 of this subsection or a personal representative appointed in the state of domicile or the nominee of such personal representative.
- If the decedent was a veteran, the department of veterans’ services.
- Forty-five days after the death of the decedent, any creditor.
- If no person is qualified and willing to serve as personal representative under paragraphs 1 through 7 of this subsection, the public fiduciary.”
To learn about the contents of the petition to open an informal probate see Arizona Revised Statutes Section 14-3301.B.
Notice of Filing Probate Petition Requirement
The applicant who files a probate petition must give notice as described by Section 14-1401 of the applicant’s application for informal probate:
- To any person demanding it pursuant to Section 14-3204.
- To any personal representative of the decedent whose appointment has not been terminated.
No other notice need be given prior to issuance of a statement of informal probate by the registrar.
On the issuance of a statement of informal probate, the applicant must within thirty days give written information to all heirs and devisees of the admission of the Will to probate, together with a copy of the Will. The information shall describe the court where papers relating to the estate are on file and state that an heir has four months from receipt of the information within which to commence a formal testacy proceeding if the heir wishes to contest the probate. If a personal representative has been appointed, the information in the notice may be combined with the information required by Section 14-3705 and may in that case be given by either the applicant or the personal representative on behalf of both.
This information shall be delivered or sent by mail to each of the heirs and devisees whose address is reasonably available to the applicant. An heir to whom the information is given is barred from commencing a formal testacy proceeding to contest the probate of the Will after four months have elapsed from receipt of the information, but an heir is not barred from commencing a formal testacy proceeding to probate a later discovered Will. An heir to whom the information is not given may contest the informal probate within the time limit specified in Section 14-3108. The applicant shall be liable to any heir or devisee damaged by failure to comply with the notice requirements of Section 14-3306.B.
If the Deceased had a Will
If the deceased had a Will, the Will with the original signature must be attached to the petition or the petition must say the deceased died intestate (without having a valid Will). The petition asks the probate court to appoint a person (sometimes a bank or trust company) as the personal representative of the estate. The petitioner must give notice to all heirs that the petitioner is attempting to open a probate and be appointed as the personal representative. Heirs and other interested parties may object to the appointment of the petitioner as the personal representative in which case the probate court will hear evidence as to who should be appointed and then issue a ruling and appoint somebody or an entity as the personal representative.
Appointment of a Personal Representative
The first order of business for the probate court is to appoint a personal representative of the estate of the deceased. If the deceased had a valid Will that specifies the personal representative, that person will have have “first dibs” on becoming the personal representative. Ultimately the decision as to who will be the personal representative will be determined by the probate court and the personal representative may not be the deceased first choice or may be somebody who is not named in the Will as a preferred personal representative.
Arizona Probate Law Personal Representative Priority
Arizona Revised Statutes Section 14-3303.A sets forth a statutory order of priority for who may be appointed the personal representative of the estate of the deceased. Section 14-3303.A states “persons who are not disqualified have priority for appointment in the following order:
- The person with priority as determined by a probated will including a person nominated by a power conferred in a will.
- The surviving spouse of the decedent who is a devisee of the decedent.
- Other devisees of the decedent.
- The surviving spouse of the decedent.
- Other heirs of the decedent.
- If the decedent was a veteran or the spouse or child of a veteran, the department of veterans’ services.
- Forty-five days after the death of the decedent, any creditor.
- The public fiduciary.”
“Devisee” means a person designated in a Will to receive a devise. In the case of a devise to an existing trust or trustee, or to a trustee on trust described by Will, the trust or trustee is the devisee and the beneficiaries are not devisees. “Devise” when used as a noun means a testamentary disposition of real or personal property and, when used as a verb means to dispose of real or personal property by Will.
“Heirs,” except as controlled by Section 14-2711, means persons, including the surviving spouse and the state, who are entitled under the statutes of intestate succession to the property of a decedent.
No Obligation to Serve as Personal Representative
A person or institution named in the Will to be personal representative cannot be forced to accept the position and the responsibility and potential liability that goes with the position. If more than one party asks the probate court to be appointed the personal representative, the court will consider the evidence for an against appointing each prospective personal representative and after considering the priorities set forth in Section 14-3303.A appoint the personal representative.
The Personal Representative May be Required to Post a Bond
Arizona Revised Statutes Section 14-3603.A states a bond is required of a personal representative unless:
- The will expressly waives the bond.
- All of the heirs if no Will has been probated, or all of the devisees under a Will which does not provide for waiver of the bond, file with the court a written waiver of the bond requirement. A duly appointed guardian or conservator may waive on behalf of his ward or protected person unless the guardian or conservator is the personal representative.
- The personal representative is a national banking association, a holder of a banking permit under the laws of this state, a savings and loan association authorized to conduct trust business in this state, a title insurance company which is qualified to do business under the laws of this state, a trust company holding a certificate to engage in trust business from the superintendent of financial institutions or the public fiduciary.
- The petition for formal or informal appointment alleges that the probable value of the entire estate will permit summary procedures under Section 14-3973 and the surviving spouse, or the nominee of the surviving spouse, is applying for appointment as personal representative.
When we represent the personal representative in an Arizona probate that does not have a Will that waives the bond requirement, we assist the personal representative in preparing the documentation to convince the probate court to waive the bond requirement. If all of the heirs and deivsees waive the bond requirement, the court will usually waive the bond.
The Arizona probate court issues a document to the personal representative called “Letters Testamentary.” This is the official court document that the personal representative gives to anybody who asks for proof of the existence of a probate and that the person who claims to be the personal representative was actually appointed by the probate court as the personal representative of the estate of the deceased.
Powers of the Personal Representative
As soon as the court appoints the personal representative and the personal representative accepts the obligations set forth in the court’s order of appointment the personal representative has the power and right to do the following:
- Give notice to people, companies, government agencies and others that a probate was opened for the estate of the deceased and that the personal representative is the legal representative of the estate.
- Collect all assets that are owned by or payable to the estate.
- Determine which expenses of the deceased are valid and invalid.
- Pay the valid expenses of the estate from the estate’s assets collected by the personal representative.
- Prepare any tax returns due from the deceased and pay any taxes that are owed.
- Determine who the devisees or heirs of the estate are.
- Determine the amount and character of property to be distributed to the devisees or heirs.
- Distribute the property of the estate to the devisees or heirs.
- File an inventory with the probate court and close the estate.
Once the personal representative is appointed, the personal representative can immediately list real estate for sale, sign a deed in the name of the estate to transfer real estate, change the title on motor vehicles., change the title on accounts, collect money and property due the estate or any thing necessary to exercise the powers set forth in the preceding paragraph.
Compensation Due the Personal Representative
A personal representative is entitled to reasonable compensation for his services. Of course the personal representative is not required to be compensated for services rendered on behalf of the estate.
How Long is the Typical Probate from Start to Finish?
When I represent a personal representative in a simple uncontested probate the entire process from start to finish takes five or six months from the time a family member or prospective personal representative first contacts me. Contested probates can take substantially longer. The process could take a lot less time if the personal representative did not have to publish a notice to creditors in a newspaper and wait four months to see if any claims against the estate are filed.
Can a Non-Arizona Resident be the Personal Representative?
Yes. Many of my probate personal representatives do not live in Arizona. The typical probate can be completed without the need for the personal representative to appear in court. Even if a court hearing were required the personal representative is usually able to participate over the telephone.
Although the court aspect of the probate will probably not require the personal representative to come to Arizona, the fact the personal representative has a duty to collect the assets of the estate and preserve the assets may require the personal representative or his or her agent to go to the home or other property of the deceased to collect and preserve personal property such as vehicles, furniture, clothing, equipment, art, collections and other tangible items. The sooner this happens the better because tangible items, especially items of substantial value, have a tendency to disappear if not collected and preserved.
Is It a Good Idea to do a Do-It-Yourself Probate Rather than Hire an Arizona Probate Lawyer?
Read my article called “Pros & Cons of a Do-It-Yourself Probate vs Hiring an Arizona Probate Attorney” in which I explain why, as an experienced Arizona probate attorney, I believe nobody should ever attempt an Arizona probate without the services of an experienced Arizona probate lawyer.
How to Hire Arizona Probate Attorney Richard Keyt to Do an Arizona Probate
To hire us to do an Arizona probate, follow the simple instructions in my article called “How to Hire an Arizona Probate Attorney.”