Estate Administration & Probate

What is Probate?

Probate officially refers to the process of establishing the validity of a will, but it also commonly refers to all the steps that need to be taken in a court supervised process to finalize a person’s affairs after death. During the probate process, the personal representative follows legal requirements to ensure that the right people are notified about the process, bills and taxes are paid appropriately, and that assets remaining in the estate are distributed according to the terms of the will or the default provisions of the law.

If the deceased person left a will (testate), that document should name an executor or personal representative nominated to be in charge of the process. However, that person does not have any authority to act until the court authenticates the will and issues documents authorizing the personal representative to act on behalf of the deceased person’s estate. The probate process for a testate estate can be informal (less supervision) or formal (more court supervision).

When someone dies without a will (intestate), their estate must go through the probate process to distribute assets according to the state’s intestate inheritance schedule. Someone, or a creditor, must petition the court to serve as the personal representative. If more than one person wants the job, then they will each need to present their qualifications to the judge for a decision unless an attorney can help the family reach an agreement out of court.

Steps in the Probate Process

As noted above, the initial steps involve determining whether there is a valid will that meets the statutory requirements and if there is, admitting it to the probate court with the appropriate petitions for authority. Once the court authorizes someone to serve as personal representative that person will be responsible for a wide range of tasks that will require up to a year or more to complete, including an accounting of the estate assets and distributions. At PayneLess Law, we guide you through each task to ensure that all legal obligations are fulfilled properly with no wasted effort.

The process will be somewhat different in each case, but generally it requires:

• Determining which people would be heirs under the law
• Taking inventory of assets in the estate
• Determining what debts must be paid
• Notifying heirs at law, beneficiaries, and potential creditors
• Paying bills in order of legal priority
• Managing property in the estate and obtaining appraisals if necessary
• Preparing and filing tax returns
• Distributing property to beneficiaries or heirs
• Filing a final accounting with the court

In Arizona, every personal representative may be required to undergo training and may be required to post a bond, although the bond requirement is typically waived in most wills. Our team can determine the probate requirements applicable in particular situations and help ensure that all obligations are fulfilled.

Not All Probate Goes Through Probate

The probate process deals with property that is part of a deceased person’s estate. An estate does not refer to a specific piece of real estate but to all types of property owned by someone when they die. However, some property is set up to transfer to other people automatically, and this type of property does not need to go through probate. Many types of accounts, for instance, come with a beneficiary clause that specifies that when the account holder passes away, the proceeds will go to people named as beneficiaries.

Similarly, property held in a trust will also go directly to beneficiaries. People often set up trusts so that all their property can pass directly outside of probate to save loved ones the time and effort involved in the process. Finally, property with a co-owner may pass directly to the other owner, depending on the way the ownership is structured.