Some Key Concepts of Probate: A General Introduction

Why do we have probate? What is the purpose of probate?


When someone dies they often leave behind various kinds of property. Many times people leave behind such items as homes, cars, bank accounts, and investments.  The deceased may also have left instructions mandating that certain people be given the deceased’s property upon the deceased’s death. Also, people often leave behind debts that they owe to various creditors. The deceased could have owed a mortgage on a home or have credit card debt. What is to happen to his debts when he dies? How are his creditors to be paid? Who gets the remainder of the deceased’s property? What happens if someone contests the deceased’s Will? Overall, the main question probate seeks to answer is: who owns the property the deceased left behind and how are the deceased’s creditors going to be paid. Overall, probate is essential to the proper administration of a deceased person’s assets. Probate makes sure the appropriate parties get what they are legally entitled to.


What types of probate proceedings are there in Arizona?


There are three different kinds of probate proceedings in Arizona. The probate estate can either be dealt with in one proceeding called a “supervised” administration or can be dealt with under “formal or “informal” proceedings. In general, a “supervised” administration is reserved for more complex estates or where a Will dictates that the probate be conducted this way. An “informal” proceeding is generally commenced for simpler estates especially where there is likely to be no dispute over who is entitled to the deceased’s assets. While “informal” proceedings are likely sufficient in most cases, a “formal” proceeding will be required if someone wishes to challenge a Will or a determination of heirs is required because of doubt about the status or existence of a particular person.


When does probate begin? What documents do I need?


Probate does not begin automatically upon the death of a person. Someone must start the probate process in Tucson. Normally this person must have some financial interest in the deceased’s estate as an heir, beneficiary, or creditor. The first step is to file various documents with the court to appoint a personal representative for the estate. Furthermore, in order to complete probate your attorney will need a variety of personal and financial information regarding the deceased and their assets. Although your attorney will advise you on the exact documents required, common documents needed to complete probate are: (1) the original Will if any; (2) death certificate(s); (3) copies of financial statements for such things as bank accounts, mutual funds, IRA’s, pensions, annuities, life insurance policies etc; (4) tax returns for the last two years; (5) a list of all personal property owned by the deceased and its estimated value; (6) copies of the certificate of title for any automobiles; and (7) copies of any deeds to real property.


What do the terms “testate” and “intestate” mean?


Throughout the probate process you may hear the terms “testate” and “intestate thrown around. These terms just refer to whether or not the deceased died with a valid Will. When someone dies they either die “testate” or “intestate”. If someone dies “testate” it means that they have died with a valid Will. Basically a Will is a written document that states who will own the deceased property when they die. Basically, dying “testate” means that there is a legal document that specifies which individuals will receive specific property when the maker of the Will dies. When someone is “intestate” it means that the deceased has died without a valid Will. When this happens there is no legal document which specifies what individuals will receive what property. In such situations Arizona has various laws which determine who gets the decedent’s property. When someone dies “intestate,” the deceased’s property passes on to his or her heirs in the manner determined by statute.

What types of assets are subject to probate?

Not all property in which the deceased has an interest is subject to probate. In other words, some property is simply not a “probate asset.” In general probate assets include property that the deceased had an interest in when he died and that was NOT transferred by contract or operation of law to another person or entity. An example of a probate asset would be an antique car that the deceased had a 100% ownership right in and was not disposed of before his death. In order to determine who has the rights to the antique car probate would be needed. An example of a non-probate asset would be a piece of real estate that a husband and wife owned in joint tenants with rights of survivorship. Under a joint tenancy each person has a 50% interest in the property. If survivorship rights are included, when one of the parties dies, the other party automatically acquires the now deceased party’s 50% interest. No probate is necessary. Other common types of property not included in probate are joint bank accounts and life insurance policies where someone besides the deceased is listed as a beneficiary. Our attorneys will be able to tell you if you have any property that must be probated.


What/Who is the personal representative?


One of the first steps that occurs in probate is the appointment of a personal representative to oversee the process of winding up the deceased’s affairs. Sometimes the personal representative will be named in a Will. If not the personal representative will be appointed by the court. If named in a Will the person representative is called an executor and if appoint by the court an administrator. If not named in a Will, the administrator is normally chosen based on state statute in order of preference. Normally this includes the deceased’s spouse, children, parents, siblings and creditors. Basically, the personal representative is to carry out certain duties in order to help the estate administration goes smoothly. Having the personal representative appointed is a required step in the probate process and our attorneys will help ensure this is done properly.


How long does probate take?


While the length of probate will vary depending on the estate it is fairly safe to say that most probate proceedings will not be able to be completed in less than 5 or 6 months. This is because under Arizona State A.R.S. 14-3801 the personal representative of the estate must give notice to the estate’s creditors and give those creditor’s 4 months to respond. The length of probate is likely to be extended if creditors or heirs file claims against the estate or someone contests the will or the appointment of the personal representative. If litigation is required this could extend the probate process to a year or longer depending on the issue. Also if the estate is rather large, the added complexity will likely make the process take longer.

When you have any questions about the probate process, it is important that you first consult your Tucson probate attorney.






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