In the state of Arizona, probate proceedings are governed by ARS Title 14 – Trusts, Estates, and Protective Proceedings.
If there’s one question that every probate attorney can count on answering in an initial client consultation, this is it. Unfortunately, it’s impossible to answer definitively. The length of time between when the decedent’s will is opened and when the estate is finally closed will depend on a number of factors that are outside of the attorney’s control (we’ll discuss these factors later).
Generally speaking, most probate cases should take less than a year. In ideal conditions, the process can wrap up in as little as 4 – 6 months. However, it’s not uncommon to see probate cases take several years to conclude when there are large, complex estates with multiple unhappy interested parties.
Before we dive into the factors that can influence the length of probate proceedings, it helps to understand what probate is, and what to expect in the process.
What is Probate?
Probate is the legal process of settling a decedent’s estate. If the decedent had a will, their assets will be transferred according to the instructions in the will. If they died without a will, their assets will be transferred according to the state’s intestacy laws.
What is the Probate Process?
The process begins when an interested party submits the decedent’s will to the county court, along with a petition to open probate. A probate judge will validate the will, and appoint an executor (also known as a personal representative) to handle the estate’s affairs. The executor will have 4 important responsibilities:
- Notify all interested parties (beneficiaries, creditors, family, etc.) that probate has begun, both by service and by posting an ad in the local newspaper
- Gather and take inventory of the estate’s assets
- Settle the decedent’s debts, bills, and final taxes
- Distribute the remaining assets to the beneficiaries
Formal vs. Informal Probate
While the four-step process for the executor is universal, the scope of the probate court’s supervision over the process will vary. If there are no objections to the will or the estate’s distribution, the proceedings will be informal and will require little to no court supervision.
In such cases, the executor is free to accomplish their tasks on their own with final approval by the court when everything is concluded. If there are objections to the will, however, the court will transition to formal probate, which can take much longer. There may be additional hearings to resolve contests, and the executor will probably need court approval before making major decisions and actions.
Informal probate is obviously the quickest and can conclude in 4 – 6 months. Formal probate may take up to a year or longer.
Factors That Can Influence the Length of Probate
Outside of formal vs. informal probate, there are a few factors that tend to lengthen the probate process. A few of these will actually require formal probate. These include:
- Where does the executor live?
- How many beneficiaries are in the will, and where do they live?
- Do any of the beneficiaries disagree?
- Are there any parties who are likely to contest the will?
- Is the estate subject to estate taxes?
- How complicated are the estate’s assets?
Where Does the Executor Live?
Most court documents require original signatures, so executors that live out of state will require additional time to receive, sign, and return the essential documents by mail. The ability to hold teleconferences and conference calls makes the need for in-person meetings much smaller, but it’s always easier when the executor lives in town and can schedule in-person meetings with the attorney and the court.
How Many Beneficiaries are in the Will, and Where Do They Live?
Similarly, the location of the estate’s beneficiaries can impact the length of the process. The number of beneficiaries is also a significant factor, as any meeting or hearing is more difficult to schedule when there are an increasing number of attendees with busy schedules.
Do Any of the Beneficiaries Disagree?
Discord amongst the beneficiaries is almost certain to lead to formal probate. Whether the upset parties formally contest the will or just drag their feet through the proceedings, the probate process will be drawn out and cumbersome.
Are There Any Parties Who are Likely to Contest the Will?
There are four ways an interested part can contest a will and successfully invalidate the document:
- If the will wasn’t appropriately signed, witnessed, and notarized (if applicable)
- If the will is fraudulent
- If the will was produced under duress and undue influence
- If the decedent lacked the mental capacity to draft a will
If proven correct, any of these four contests can result in invalidating the decedent’s will. In such cases, the court will have to treat the estate as if there was never a will, and distribute the assets according to the state’s intestacy laws. As an invalid will negates the appointed executor, the court will also need to appoint a new personal representative. If there is not another suitable choice, or if there is too much discord amongst the interested parties, the court will appoint a third-party special administrator.
Is the Estate Subject to Estate Taxes?
Single estates worth more than $11.2 million and joint estates worth more than $22.4 million will be subject to estate taxes. In these rare cases (only about 0.1% of Americans qualify for estate taxes), the decedent’s estate can’t be closed until the court receives a closing letter from the IRS and/or the state taxing authority. Unfortunately, it can take 6 – 8 months to receive the closing letter.
How Complicated Are the Estate’s Assets?
Bank accounts, personal possessions, vehicles, houses, and land are fairly simple to transfer through probate. Business interests and foreign assets may take much longer to sort through.
Can an Estate Bypass Probate Altogether?
The easiest solution to the probate headache is to avoid the process as much as possible. In the state of Arizona, estates with less than $75,000 in personal property and less than $100,000 in real property qualify for a small estate exemption. In these cases, the court will just need to provide rubber-stamp approval once the estate’s assets are transferred by the personal representative.
Estates that are too large to use the small estate exemption can transfer assets to a living trust. As long as the trust is created while the grantor is still alive, a trustee will manage and distribute the assets upon the grantor’s death—not the executor or probate court.
There are also a number of assets that are inherently structured to avoid probate. These assets have a contractual beneficiary on the account who will receive the assets automatically when the financial institution receives a copy of the death certificate. They’re aptly referred to as non-probate assets. Such assets include:
- Bank and brokerage accounts with a payable-on-death or transfer-on-death beneficiary
- Retirement accounts
- Life insurance policies
- Real property owned in joint tenancy or as tenants in the entirety
Call our Probate team at (480)467-4365 to discuss your case today.