When someone passes away, the responsibility to distribute their assets and close their estate falls to a court-appointed personal representative. If the decedent nominates a personal representative in their will, this individual is referred to as the executor. If the decedent did not have a will, or if an interested party successfully contests the will, a probate judge can appoint a third-party special administrator instead. Either way, how and when you receive your inheritance from the decedent’s estate is entirely in the hands of the personal representative.
While receiving your inheritance may be the first thing on your mind, it’s the last item on the personal representative’s list of responsibilities. Before they can distribute assets to you and the other beneficiaries, the personal representative will need to do the following:
- Submit the decedent’s will, and petition the county court to open probate
- Receive a formal appointment and letters testamentary from the court to serve as personal representative and act on behalf of the estate
- Serve notice of probate proceedings to the estate’s interested parties, especially beneficiaries, family members, and creditors
- Post a notice in the local paper that probate proceedings have commenced, and that the estate’s creditors will have 120 days to file claims against the estate
- Take an inventory of the decedent’s assets
- Have real and personal property appraised for fair market value
- Pay the estate’s administration costs, legal fees, and appraisal fees
- Pay the decedent’s final bills and settle the estate’s liabilities
- File a final income tax return and estate tax return, and pay taxes (if applicable)
- Receive approval from probate court to distribute the remaining assets
How Long Does it Take to Receive Your Inheritance?
The length of the probate proceedings will vary from case to case. If there aren’t any contests to the will or final distribution, informal probate can usually distribute your inheritance in 4 – 6 months. On the other hand, if formal probate is required due to contests and family discord, additional court supervision and hearings may drag out for up to a year before you receive your inheritance. In rare cases, supervised formal probate can take several years to complete.
Unfortunately, cases of stolen inheritances are not uncommon. In any situation where one party ends up less than what they’re entitled to and another party is unjustly enriched, you should seek legal counsel. Contesting a will isn’t easy, but there are circumstances that allow a judge to invalidate a fraudulent, forged, or unduly influenced will. Factors that may result in a successful will contest include:
- The testator (the person writing the will) is a minor
- The testator was incapacitated and not of sound mind
- The testator was under duress or undue external influence
- The testator’s signature or material provisions in the will were forged
- The will was improperly witnessed
- There is a more recent version of the will that was meant to replace the previous version
Many people who are a victim of a stolen inheritance avoid hiring an attorney because they think it would be too expensive. This is a common misconception, as many attorneys are willing to work on a contingency fee basis rather than requiring payment up front. When working on a contingency fee basis, the attorney agrees to accept payment as a portion of the final judgement value when the lawsuit concludes. Not all attorneys work on a contingency fee bases, though, so it’s important to ask in your initial consultation. Also, keep in mind that if the court rules against your contest, you will be responsible for compensating the attorney for their time.
Filing a Suit Against a Personal Representative
In addition to contesting the will, you have the right to file a suit against the personal representative if they are remiss in their responsibilities or if you have evidence of fraudulent activity. Again, you’ll want to do this with the aid of an experienced attorney, and you may need to hire a forensic accountant to analyze the personal representative’s accounting documents. If you and your attorney believe you have a case against the personal representative, there are 4 courses of action that you can take:
- Serving notice – if the personal representative is a family member, it may be best to resolve the issue outside of court. Draft a notice that details your grievances and demands recourse, have a courier serve them the notice, and file proof of the notice with the county court.
- Filing a complaint – if the personal representative doesn’t comply with your notice, you may need to bring the problem to the probate judge’s attention. File a petition with the probate court, and request that a judge schedule a hearing to assess the situation. Until the matter can be resolved, the probate process will freeze and the personal representative can’t take any further actions.
- Demanding an accounting – if the petition has merit, the probate judge will request an accounting from the personal representative to confirm what they’ve been able to accomplish and to check for inaccuracies. If the court doesn’t request an accounting, you have the right to demand an accounting.
- Removing the executor – if the court finds evidence that the personal representative is remiss in their responsibilities, the judge will appoint a new administrator. If the court finds evidence of criminal conduct, the judge can refer the case to a prosecutor.
The No-Contest Clause
To prevent baseless will contests by unhappy heirs, probate courts have the power to penalize a beneficiary who submits an unwarranted objection. In some cases, a beneficiary stands to lose their entire inheritance. This is known as the no-contest clause. Take that as a warning, but don’t let it scare you away from proceeding with a valid will contest. Arizona law waives the no-contest clause for beneficiaries where probably cause justifies their actions.
Receiving an Inheritance Outside of Probate
Not all assets need to transfer to an heir through probate court. In fact, a number of assets are designed to automatically transfer to a decedent’s beneficiaries immediately after their death. These assets (aptly referred to as non-probate assets) have a contractual beneficiary listed on the account. As soon as the financial institution holding the assets receives a copy of the owner’s death certificate, they’ll transfer the assets to the beneficiary listed on the account. Rather than dawdling through the courts for months, this process can wrap up in as little as 1 – 2 weeks, making it significantly faster and easier than probating assets. Non-probate assets include:
- Bank and brokerage accounts with a payable-on-death or transfer-on-death beneficiary
- Real estate held in joint tenancy or as tenants in the entirety
- Retirement accounts
- Life insurance policies
Call Arizona Estate Attorney Dave Weed at (480)467-4325 to discuss your case today.
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