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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.

What is Probate?

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.

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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.

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Simplified Procedures for Small Estates

There are two basic procedural shortcuts for collecting assets of small estates:

1. Collection of Property via Affidavit

Personal Property (that’s anything except real estate) -- no court proceeding required.  If the total value of all the personal property you leave behind (less liens and encumbrances) is less than $50,000, the people who inherit your personal property may be able to skip probate entirely.  If the estate qualifies, the heir(s) (if no valid or existing will) or devisee(s) (if valid will exists) can prepare a short document stating that he or she is entitled to a certain item of property under a will or according to intestate law. This paper, signed under oath, is called an affidavit. When the person or institution holding the property -- for example, a bank where the deceased person had an account -- receives the affidavit and a copy of the death certificate, it releases the money or other property.

Some of the advantages to collection of personal property via affidavit are ease of procedure and cost effectiveness.  One of the disadvantages is that a minimum of thirty days must have lapsed since the date of death of the decedent as this can often delay access to much needed funds to pay for funeral expenses, etc.

Real Property (real estate) – court proceeding required.  If the total value of all the real estate you leave behind (less liens and encumbrances) is less than $75,000, the heir(s) (if no valid or existing will) or devisee(s) (if valid will exists) can prepare a short document stating that he or she is entitled to such property under a will or according to intestate law. This paper, signed under oath, is called an affidavit.

The advantage to collection of real estate via affidavit may be the informality of the procedure.  The disadvantages are that the affidavit must be submitted to the same court and for the same fee as if a probate were being commenced, and six months must have lapsed since the date of death of the decedent.

2. Summary Administration Proceedings

This simplified procedure can be used if the estate is “small” as defined by statute.  The probate court is still involved, but it exerts far less control over the settling of the estate.  Summary administration is more informal and much quicker than typical estate administration and notice to creditors and interested parties may not be required.

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Advantages to Probate

• can be filed after 120 hours have lapsed since decedent’s death

• when a notice to creditors is published, all debts and liabilities of the decedent are terminated with respect to creditors who fail to file a claim against the estate within the four month period

• probate court can resolve any disputes involving the decedent's estate and disposition of its assets

Disadvantages to Probate

• documents filed with the probate court, including the inventory of assets, are a matter of public record and can be examined by any one

• takes time, a minimum of four months from the date of first publication of the notice to creditors

• additional fees and costs

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