Introduction
If you are an interested party (beneficiary) to an estate, you should receive a notice when probate is opened for the estate. The initial notice usually includes a waiver of notice of probate of a will, along with copies of the will and other relevant documents. If you have not received a notice, it either means that probate hasn’t been opened yet, or it could indicate that the court doesn’t view you as an interested party.
Contact the County Probate Court
Probate proceedings are required to take place in the county where the decedent resided at the time of death. If the decedent owned any property in another state there may be a separate probate case in that state to address the foreign property, but the primary probate case will always be in the home state and county.
To find out if an estate is in probate, you can check with the county probate court. Probate proceedings are public, so there aren’t any privacy laws that would prevent you from contacting the court for information.
What to Do if Probate is Open and You Haven’t Received Notice
The executor is required to provide notice to all interested parties by mail or via a process server. If probate was recently opened, your notice may still be in transit. If it’s been a reasonable amount of time and you still haven’t received notice, you should request the executor’s name and contact information and reach out to him or her directly. It could be a simple mistake, such as sending your notice to the wrong address or having the wrong contact information on file.
If the executor says you are not listed as an interested party in the will, you should contact a probate attorney immediately. If you are indeed an interested party, you have the right to contest an invalid will, object to the actions of the executor, and request an initial hearing.
What to Do if Probate is Not Open
If the decedent had a last will and testament, the party in possession of the document needs to submit the will to the county probate court. In most cases the will is left with the nominated executor (e.g. the estate’s personal representative), so the executor will file the will and petition to open probate for the estate. Most states require the will be filed within 30 – 90 days of the decedent’s passing, but the estate has up to two years to open probate.
If the executor has failed in their duty to submit the will or petition to open probate, interested parties have the right to open probate on their own. It’s best if the petitioning party has a copy of the will attached to the petition, but once probate is opened a judge can subpoena the will if necessary.
If the decedent died without a will they died “intestate,” and their estate will be distributed according to the state’s intestate succession laws. In that case, any interested party can petition to open probate and request to be appointed as the estate’s administrator.
What to Expect in the Probate Process
In Arizona, probate proceedings are guided by the Uniform Probate Code (UPC), a set of rules and guidelines adopted by 18 states to standardize probate proceedings in the United States.
The length and complexity of probate proceedings will vary from case to case, but the process is roughly the same:
- Validate the will
- Appoint an executor
- Gather the estate’s assets
- Settle the decedent’s liabilities
- Distribute the remaining assets
If there aren’t any disputes, contests to the will, or objections to the actions of the executor, the probate process is considered informal and won’t require much court supervision. In Arizona, informal probate cases can wrap up in as little as 5 – 6 months (though 6 – 8 months is more common). However, if there are disputes, contests, or objections, the estate will have to go through formal probate and will be subject to more court supervision. Formal probate cases can take up to a year or longer.
Validating the Will
There are a few requirements that need to be met for a will to be considered valid:
- The will needs to be signed and dated by the testator or signed by a proxy at the direction of the testator (ARS 14-2502).
- If the will is typed, two witnesses need to sign the will. If the will is handwritten (holographic), witnesses aren’t required as long as the signature and material provisions in the will match the testator’s handwriting.
- At the time the will was drafted, the testator needs to be of sound mind and free from undue influence
- The last will and testament needs to be the most recent version of the will
When a will is invalidated, a probate judge will have to determine if the entire document is compromised, or if there are certain provisions that can still stand. If there is a previous version of the will that is considered valid, the judge may reference part or all of that document. Absent a previous valid will, the state’s intestacy laws will govern the distribution of the estate’s assets that are affected by the invalidated portions of the will.
Appointing an Executor
A proper will should nominate someone to serve as their estate’s personal representative or executor. The executor is usually the one who submits the will and petitions to open probate. Once appointed by the court, the executor will have full legal authority to act on behalf of the estate.
If you are concerned that the executor is remiss in their responsibilities or has acted illegally (fraud, manipulation, theft, etc.), you have the right to file a complaint with the court. The court will suspend probate and demand an accounting from the executor. If your complaint is validated, the court can dismiss the executor and appoint an administrator to take their place.
Gathering the Estate’s Assets
Before the executor can start paying the decedent’s bills and distributing their assets, they’ll need to take an inventory of the estate and determine the fair market value of the assets. Liquid assets like bank accounts and brokerage accounts are easy to value with the most recent account statements, but real property and personal property (art, jewelry, etc.) will need to be professionally appraised.
Settling the Decedent’s Liabilities
Using the estate’s assets (ideally the ones that haven’t been bequeathed in the will), the executor will need to pay the decedent’s outstanding debt, taxes, probate administration fees, funeral costs, and other bills. This is usually the part of probate that takes the longest, as the state of Arizona requires creditors be given at least four months after the initial notice of probate to submit claims to the estate.
Distributing the Remaining Assets
When it’s time to distribute the assets and close the estate, the executor will submit an accounting and report of their activities to the court. Once approved, the executor will be free to transfer the assets to the intended beneficiaries. While there are not time restrictions here, you should receive your inheritance fairly quickly once the estate is closed.
What Actions Can You Take After Probate is Closed?
If you discover that probate is over and the estate has been closed, you have up to one year to petition to reopen probate. If you have any objections to the actions of the executor, you have up to six months to file a complaint with the court. That said, it’s extremely difficult to reclaim assets that have been legally distributed from a closed estate.
Call our Probate team at (480)467-4365 to discuss your case today.
