Introduction
In the state of Arizona, the probate process is based on the Uniform Probate Code (UPC), a standardized set of probate laws adopted by many to simplify the probate process. Based on the UPC, there are three types of probate proceedings: informal probate, formal unsupervised probate, and formal supervised probate.
Informal Probate
This is the most common type of probate, and it’s designed to be the easiest. In cases where the decedent left a will and there are no disputes among the estate’s beneficiaries or creditors, informal probate typically skips the initial court hearing. The court will quickly validate the will, appoint a personal representative to manage the estate (also known as an executor or administrator), and give the personal representative their instructions.
From there, the personal representative will be free to handle the probate process without hearings or court supervision. When the estate is settled, the personal representative will close the estate by filing a final accounting and a closing statement with the court, showing that all of the estate’s liabilities are settled and assets have been distributed. Generally speaking, informal probate can wrap up in as little as 5 – 6 months.
Unsupervised Formal Probate
Formal probate is required when the decedent didn’t have a will, and when there are disputes or disagreements from the estate’s interested parties. It’s not uncommon to see probate cases begin with informal probate and switch to formal probate when a problem arises. In such cases, the court would suspend the personal representative’s activities until a hearing is held to assess the problem.
From the start, the court will hold an initial hearing to validate the will and appoint a personal representative if any of the interested parties file a contest or complaint. At the initial hearing, the contesting party (usually a beneficiary) will have the opportunity to present their case that 1) the will is invalid, or 2) the nominated personal representative is unqualified to serve. If more discovery and hearings are necessary, probate will remain frozen until the issue(s) can be resolved. That said, most initial hearings take less than 15 minutes and are quickly resolved.
Once the issue has been addressed, the level of ongoing court supervision will vary from case to case. If the initial issue is completely resolved and there are no further concerns, the process will likely include little supervision other than court approval before final distributions are made. If there are ongoing concerns or reasons for additional scrutiny, the personal representative may be required to provide more frequent accountings and reports to the court throughout the process. Cases of unsupervised formal probate will take a little longer than informal probate, often wrapping up in 8 – 12 months.
Supervised Formal Probate
Supervised formal probate is pretty rare, as most will contests and complaints from interested parties can be handled sufficiently through unsupervised formal probate. Supervised formal probate will require additional hearings and court approval of many (if not all) of the personal representative’s major activities. Such cases can easily take a year or longer to conclude.
What to Expect at a Probate Court Hearing to Contest the Will
You can’t just object to a will because you don’t like it. Only interested parties can contest a will, and a successful will contest will need to prove that the will is invalid. Based on Arizona law, a valid will needs to contain the following elements:
- The will is signed and dated by the testator, or a proxy signed the will under 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 are recommended but not required. Instead, the testator’s signature and the material provisions in the will need to match the testator’s handwriting.
- At the time of signing, the testator must be an adult of sound mind (ARS 14-2501).
- The testator cannot be subject to duress or undue influence.
At the hearing, the contesting party will have the opportunity to argue that the will is invalid and will need to offer evidence and/or testimony to support their claim. Structural inconsistencies are relatively simple to prove (e.g. the signature was forged, there weren’t enough witnesses, etc.), but proving someone was under undue influence or mentally incapable of drafting a will are more challenging. Hearings regarding those types of contests may include testimony from an expert witness such as a doctor or psychologist (usually written rather than orally presented).
What to Expect at a Probate Court Hearing Objecting to the Personal Representative
When someone objects to the activities of a personal representative and files a complaint, the court will usually require the personal representative to submit an accounting of their actions. If, for some reason, the court initially declines to request an accounting, interested parties to the estate have the right to demand an accounting and hold a hearing. If the court determines that the personal representative has been remiss in their responsibilities, the judge can appoint a new personal representative.
The replacement representative is usually another family member, but the court can appoint a third-party special administrator when necessary. If the personal representative is guilty of fraud or theft, they may be liable to civil damages and criminal penalties.
What to Expect During the Probate Hearing Process
Whether probate is formal or informal, the general process is the same. Once the will has been validated and the personal representative is appointed, the personal representative will begin by gathering and valuing the estate’s assets. To determine the fair market value of illiquid assets such as real estate, vehicles, and personal possessions (art, jewelry, collectibles, etc.), the representative will probably need to hire a professional appraiser.
When the personal representative has an accurate inventory of the estate’s assets, they’ll use the assets to settle the decedent’s debts, taxes, and outstanding bills (funeral costs, probate administration fees, etc.). After the liabilities are settled, the personal representative will distribute the remaining assets to the beneficiaries named in the will. Finally, when all of the assets are distributed, the personal representative will close the estate by submitting a final accounting and closing statement to the court.
Call our Probate team at (480)467-4365 to discuss your case today.
