About Probate
When probate is required, Silverman Law Offices will act as your representative and manage the process for you.
The term “Arizona probate court” refers to Arizona Superior Court monitored legal proceedings by which the liabilities of a decedent are paid and the probate assets of the estate are transferred by a personal representative of the estate appointed by the Court.
What are Probate Assets?
Probate proceedings involve only assets commonly referred to as “probate assets.” Arizona probate courts do not have jurisdiction over and cannot administer assets that are not probate assets. Probate assets include all real property and personal property, including intangible personal property:
- in which the decedent had an interest at the time of death, and
- that are not transferred by operation of law or by contract to a person or entity.
The decedent must have had an interest in the property at the time of death or the property is not a probate asset. This is why a fully funded living trust avoids probate. The decedent does not have an interest in the property if it is titled in the name of the trustee of the living trust.
What are the Types of Arizona Probate Court Proceedings?
There are three types of probate in Arizona: informal, formal, and supervised. Most Arizona probates are informal, which are usually less expensive in terms of attorneys’ fees and are handled quickly and usually without contest. Not all estates, however, are eligible for informal probate. Contested estates are usually resolved in a formal probate, which can include court hearings, depositions, motions, discovery, and a trial, just as any other Superior Court litigation.
An informal probate is an Arizona Superior Court proceeding overseen by a registrar (judge), the clerk of the court, or a court commissioner designated to oversee and administer informal probates. Because informal probates have the lowest level of court supervision, they generally can be completed for lower legal fees and in less time than formal and supervised probates. An informal probate is conclusive as to all persons until superseded by an order in a formal testacy proceeding.
A formal probate is litigation in Arizona Superior Court to determine whether a decedent left a valid Will and to appoint a personal representative. A formal probate is more time consuming and expensive than informal probate because it involves court hearings and more court involvement in the estate administration.
Who May Initiate an Arizona Probate?
Any of the following may initiate an informal probate:
The surviving spouse of the decedent.
An adult child, a parent, a brother or a sister of the decedent.
An heir of the decedent.
A person nominated as a personal representative by a probated Will or the Will for which probate is asked or pursuant to a power conferred by the Will.
If the decedent was a nonresident of Arizona, any person who is qualified under the parameters of the first four above or a personal representative appointed in the decedent’s state of domicile or the nominee of the personal representative.
If the decedent was a veteran, the Department of Veterans’ Services.
Any creditor of the decedent after 45 days after the death.
The public fiduciary if no person is qualified and willing to serve as personal representative under any of the above.
Who Can be Appointed Personal Representative of an Arizona Probate?
Arizona probate law provides that the following persons who are not disqualified may be appointed as personal representative of a testate or an intestate estate (regardless of whether the probate is formal or informal) in the following order of priority:
The person with priority as determined by a probated Will, including a person nominated by a power conferred in a Will.
The surviving spouse of the decedent who is a devisee of the decedent.
Other devisees of the decedent.
The surviving spouse of the decedent.
Other heirs of the decedent.
If the decedent was a veteran, the Department of Veterans’ Services.
Any creditor of the decedent after 45 days after the death of the decedent.
The public fiduciary.
A person is not qualified to serve as a personal representative if the person is:
- Under the age of eighteen.
- A person whom the court finds unsuitable in formal proceedings.
- A foreign corporation.
What is the Difference Between a Devisee and an Heir?
A devisee is a person designated in a Will to receive a devise, which is a disposition of real or personal property made under a Will. An heir is a person, including the surviving spouse, who is entitled to property of a decedent under Arizona’s law of intestate succession.
What do Testate and Intestate Mean?
If an Arizona resident dies with a Will that complies with the requirements of Arizona probate law, the person is said to have died testate, which means he or she has a valid Will and the decedent’s probate assets pass to the people or entities named in the Will. An Arizona resident who dies without a valid Will dies intestate and the decedent’s probate assets pass as provided in Arizona’s laws of intestate succession. When an Arizona resident dies without a valid Will, Arizona law will determine who gets the decedent’s probate assets, which may result in people inheriting property contrary to the decedent’s wishes.