SERVICES > PROBATE AND ESTATE ADMINISTRATION
Probate is one of the most misunderstood legal processes -- the “bogeyman” of estate planning. Unscrupulous practitioners use fear of probate to sell expensive estate plans that are far more than many people need.
Probate is nothing more than the process by which a Will is filed with a court after death and the probate clerk (in informal proceedings) or judge (in formal proceedings) of that court "admits" the will to probate by declaring that it is the valid will. The term is also commonly used in intestate (no will) proceedings to differentiate court proceedings from non-court proceedings in administering the intestate estate.
Arizona utilizes a system of independent administration that keeps it from being the daunting, burdensome process that is often associated with the probate process in other states. This means that whether the proceeding is filed informally or formally, the personal representative (appointed by the court pursuant to a valid will or intestate law) can thereafter work independently of the court in managing the estate. This process is typically very informal and inexpensive. Most costs of estate administration are not a result of the probate process but rather are common problems which occur after death and which can arise whether or not there is a probate.
Estate Administration refers to the remaining procedures and duties of the personal representative. These include: collection and inventory of assets, payment of approved claims against the estate, payment of all state or federal taxes due, and final distribution of the remaining assets to the heirs or devisees entitled to them.
Most Arizona estates, whether testate (with a valid will) or intestate (without a valid will), can be settled by means of informal probate. Informal probate does not require a court appearance or litigation, and is typically supervised by the court registrar specially designated to oversee and administer informal probate.
Informal probate is simpler and less time consuming than formal probate and, therefore, tends to be less expensive than the formal process.
A properly prepared and filed informal probate can result in appointment of a personal representative in as few as 24-48 hours and the average informal probate Estate Administration period is approximately six months.
Arizona statutes, rules and laws regarding document and procedural requirements for informal probate must be strictly adhered to in order to eliminate unnecessary delays.
In some instances, a formal probate may be necessary. Formal probate involves litigation and requires a court appearance (often allowed telephonically). Formal probate litigation is similar to a civil suit and, in contested proceedings, involves court hearings, depositions, motions, discovery, and a trial. A petition for formal probate may stop an informal probate proceeding and prevent further action on the estate while the request for formal probate is pending.
Most formal probate proceedings are uncontested, but are filed formally for a myriad of reasons such as, but not limited to: inability to locate valid Will known to exist; inability to locate original valid Will; desire of personal representative to have the court determine (or verify) who the heirs are in intestate proceedings; inability of heirs with equal right to appointment to agree on personal representative. In uncontested proceedings, once a personal representative is appointed, Estate Administration is handled informally.
Formal probate is more complex and more time consuming than informal probate and, therefore, tends to be more expensive than the informal process.
A properly prepared and filed formal probate can result in appointment of a personal representative in as few as 30 days and the average uncontested formal probate Estate Administration period is approximately eight months. Contested formal probate proceedings take significantly longer.
Arizona statutes, rules and laws regarding the document and procedural requirements for formal probate must be strictly adhered to in order to eliminate unnecessary delays.
There are two basic procedural shortcuts for collecting assets of small estates:
Disadvantages to Probate
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