Introduction
Probate is the legal process of closing someone’s estate after they pass away. Probate proceedings can vary widely from case to case in terms of their scope and length, but the primary purpose is always the same: settle the decedent’s liabilities and distribute the estate’s assets. In the ideal scenario, the decedent has left a will that nominates a personal representative and clearly lists the estate’s beneficiaries. If there isn’t a will, then probate will be dictated by the state’s intestacy laws.
Filing the Will
The courts try to allow plenty of time for family members to grieve the loss of their loved one before initiating probate. If you’re in possession of the decedent’s will, you’re asked to submit the will to the county probate court in “a reasonable amount of time” following the decedent’s passing. Generally speaking, you should file the will within 30 days of the decedent’s passing, though some states allow up to 120 days to file the will.
There aren’t any penalties for filing the will late, but the court may hold you personally liable for any damages incurred by the estate’s beneficiaries due to the late filing. However, if the court finds that you deliberately withheld the will for personal financial gain, you may face criminal charges.
Note that while you have a legal obligation to file the will in a reasonable amount of time, you’re under no obligation to petition to open probate. Most people choose to submit the will along with a petition for probate, but there’s no requirement to do so. If you’re in possession of the decedent’s will but you want no part of the probate proceedings, then you can fulfill your legal duty by simply filing the will with the court. After that, any interested party to the estate can petition to open probate.
Opening Probate
While some states allow up to six years to probate an estate, the state of Arizona will only accept probate cases that are opened within two years of the decedent’s passing (ARS 14-3108). That said, there are a few exceptions to the two-year statute of limitations:
- If a previous proceeding was dismissed due to doubts about the fact of the decedent’s death, then the appropriate probate, appointment, and/or testacy proceedings can be maintained at any time thereafter, providing that the court finds that the decedent’s death occurred prior to the initiation of the previous proceeding and the applicant or petitioner hasn’t delayed unduly in initiating the subsequent proceeding.
- Appropriate probate, appointment, and/or testacy proceedings can be maintained in relation to the estate of a missing, disappeared, or absent person for whose estate a conservator has been appointed, at any time within two years after the conservator is able to establish the death of the missing, disappeared, or absent person.
- A proceeding to contest an informally probated will and to secure appointment of the person with legal priority for appointment in the event the contest is successful may be commenced within the later of two years from the decedent’s death or twelve months from the informal probate.
- An informal appointment or probate, or a formal testacy or appointment proceeding, may be commenced after the two-year deadline if no court proceeding concerning the administration or succession has occurred within the two-year period. If proceedings are brought under this exception, the personal representative has no right to possess estate assets (as provided in ARS 14-3709) beyond that necessary to confirm title to the rightful successors to the estate. In such proceedings, no claims other than expenses of administration may be presented against the estate.
Who Can Petition for Probate of a Decedent’s Estate?
According to the Uniform Probate Code (UPC), any interested party to the estate can file a petition to open probate. That includes family members, beneficiaries, legal heirs, and even creditors. If the petitioning party doesn’t have a copy of the will, the court will attempt to contact the other interested parties to determine if there is a will and appoint the nominated personal representative. If there isn’t a will, and if the court can’t find a qualified party to serve as the personal representative, then the court may appoint a third-party special administrator to probate the estate.
What to Include in the Petition for Probate
When you’re ready to begin probate, you’ll need to submit the following documents to the probate court in the county where the decedent lived or owned property:
- Application for appointment (signed and notarized, original plus copy)
- Certificate of completion of training (original plus copy)
- Declaration supporting publication (includes affidavit of publishing; original plus copy)
- Informal checklist
- Letters and acceptance of appointment (signed and notarized, original plus copy)
- Notice of application (original plus copy)
- Order to personal representative (signed original plus copy)
- Original copy of the last will and testament
- Probate information cover sheet
- Proof of mailing of notice of application (original plus copy)
- Statement of informal appointment (original plus copy)
- Waiver of bond (signed original plus copy)
- Waiver of right to appointment and consent (signed original plus copy)
When the petitioner files the appropriate forms with the county court, he or she will be required to pay the filing fee (though it’s important to note that this and other court costs can be expensed to the estate).
The Small Estate Exception
The state of Arizona allows small estates to settle the decedent’s liabilities and transfer assets without going through probate. To qualify, the estate must have less than $75,000 in personal property and less than $100,000 in real estate. The individual handling the estate will simply need to fill out and submit a small estate affidavit.
Assets That Are Not Subject to Probate
It’s a common misconception that all of a decedent’s assets need to be transferred to his or her beneficiaries through probate. In fact, most (if not all) assets can be positioned to transfer to beneficiaries outside of probate, as long as the assets are properly dispositioned before the owner’s passing. The following assets are typically exempt from probate, and can transfer to the designated beneficiaries immediately following the owner’s death:
- Bank and brokerage accounts with a payable-on-death or transfer-on-death beneficiary
- Joint assets with rights of survivorship
- Real estate owned in joint tenancy or as tenants in the entirety
- Retirement plans (401k, IRA, etc.)
- Life insurance policies
- Trusts
Call our Probate team at (480)467-4365 to discuss your case today.
