In the state of Arizona, wills, trusts, estates, and protective proceedings are governed by ARS Title 14. Probate court and proceedings are also guided by the Uniform Probate Code, which has been adopted by 18 states to update and simplify state probate law.
There are several statutes of limitations and general time limits regarding wills and probate in Arizona, and each of them depends on the circumstances. Generally speaking, probate needs to be opened within two years of the decedent’s death, and objections to the will should be submitted within the same two years. However, there are a number of exceptions and additional restrictions that can lower that time frame. Following is a brief discussion of how a will goes through the probate process, and where a statute of limitations may apply at each step in the process.
If you are in possession of a will, you are legally responsible for submitting the will to the county probate court. While you have up to two years to open probate, most states require that you submit the will within 30 – 120 days of the decedent’s death. Failure to submit the will in a timely manner is not a criminal offense, but it does open the door for beneficiaries of the will to sue you for damages that were incurred as a result of withholding the will. On top of that, if the court finds that you deliberately concealed the will or refrained from filing it for financial gain, you may be subject to criminal charges.
Once the will has been submitted to the county probate court, someone will need to file a petition to open probate. The holder of the will usually takes care of this, but it can be filed by anyone who is an interested party to the estate. At this point, there are two primary reasons an interested party may contest the will: to contest the validity of the will itself, or to object to whomever is requesting to be the estate’s executor (also known as the personal representative). An interested party would need to prove one of the following to successfully contest the will:
- The testator was legally incompetent at the time of signing (perhaps due to mental illness or senility)
- The testator was a victim of elder abuse
- The testator was subject to undue influence or duress
If any of these are true, then a probate judge may invalidate the will and/or deny the nominated party from serving as the executor. If the will is invalidated, the decedent’s estate will proceed with probate according to the state’s intestacy laws as if the decedent never made a will. If the executor is rejected, the court will appoint a neutral third-party administrator to serve as the personal representative. Keep in mind, however, that this is not your last chance to contest the will or object to the personal representative.
During Informal Probate
A judge will grant informal probate if there are no objections to the will or executor. Informal probate is largely handled by the executor outside of court with minimal court supervision, and is significantly faster and cheaper than formal or supervised probate, so it’s always the preferred route.
When the court opens probate, the clock starts ticking, and interested parties will only have four months to file an objection to force formal probate and/or court supervision. After four months, the court will enter an order for probate to proceed informally. If an interested party contests the will during these four months, the informal probate process will essentially freeze until a hearing can take place to assess the merits of the objection, and the executor will be barred from taking any action until it is resolved. If the contest is deemed valid, the process will switch to formal probate.
During Formal Probate
Formal probate extends the probate process, and therefore extends the window during which an interested party can contest the will. Formal probate can take up to two years, though it’s usually much less than that. The actual time will vary from case to case depending on the complexity of the estate and the number of objections.
After Probate Closes
Once probate is closed, distributions to the testator’s beneficiaries are conclusive and binding. An interested party can still reopen the matter up to one year later or up to two years after the decedent’s death (whichever comes first), but assets that have been lawfully distributed are extremely difficult to retake.
You have the right to contest an executor’s appointment or actions up to three years after the testator’s death. However, any complaints regarding an executor’s abuse of power need to be filed within six months of the estate’s closing. Complaints regarding improper distributions to beneficiaries can be filed within one year of the distribution, or within three years of the decedent’s death. Keep in mind, though, that both of these exceptions are still extremely limited in their ability to rescind conclusive and binding distributions to beneficiaries.
Can you Contest Other Aspects of an Estate Plan?
When it comes to a durable power of attorney, advance directive, or letter of intent, you can always file a lawsuit to nullify the document if the individual in question was not of sound mind and capacity to enter into a contract. Similar to contesting this matter with a will, you would need to prove that the individual lacked the mental capacity, was the victim of elder abuse, or was subject to undue influence or duress.
Contesting a trust is a lot trickier, and is subject to its own statute of limitations. When the trustee is prepared to settle the trust, they are required to send notice to the beneficiaries within 60 days. Once the beneficiaries receive the notice, an interested party has up to 120 days to file an objection with the court. If the trustee fails to issue a notice to beneficiaries, then the statute of limitations allows up to three years to contest the trust.
Call Arizona Estate Attorney Dave Weed at (480)467-4325 to discuss your case today.
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