Probate is the process by which a will is validated by the Arizona Superior Court and the personal representative gathers the assets of the decedent, pays the liabilities, and distributes the remaining assets in accordance with the provisions in the will.
Probate is often thought of as expensive and time consuming, however, this depends significantly upon the type of probate proceeding. Arizona law provides for three types of probate proceedings: 1) informal, 2) formal, and 3) supervised. A key difference between each type of probate is the extent and effect of court oversight of the process. Because of the amount of court involvement required, formal and supervised probate are generally more expensive than informal probate.
1) Informal Probate
Informal probate is available for those estates where the will and execution satisfy certain requirements and the will is uncontested. Informal probate is no less conclusive as to the disposition of a decedent's assets than formal probate, however, actions taken during informal probate may be set aside in a formal probate proceeding, should it later occur.
Informal probate may be requested by a decedent's surviving spouse, an adult child, a parent, a brother, a sister, an heir, a person nominated as the personal representative, any of the aforementioned persons or the personal representative appointed in the state of domicile or the nominee of such personal representative if the decedent is a non-resident, the department of veteran's services, any creditor (after 45 days), or the public fiduciary (ARS § 14-3301).
In order to facilitate the informal probate of a will, the person who executes a will, called a testator, can do so in a manner that makes the will "self-proved" (ARS § 14-3303). In order for a will to be self-proved, it must include: a) a notarized acknowledgment by the testator and b) notarized affidavits of the witnesses. However, if a will does not satisfy these requirements, it can be informally probated if, in the discretion of the registrar, it appears to have been properly executed.
2) Formal Probate
Where the requirements of informal probate are not satisfied, Arizona law requires the use of formal probate. In addition, for those estates that present issues related to the validity of a testator's will, interested persons can petition the court for formal probate thereby commencing litigation (ARS § 14-3401). Until a will has been determined valid, the personal representative may not make distributions under the will (ARS § 14-3401).
3) Supervised Probate
If an estate presents complex or unusual issues, e.g. insolvency, supervised probate can be requested to require court oversight of all distributions and all sales of real property made by the personal representative (ARS § 14-3504). Supervised probate may be requested by any interested person or by the personal representative at any time (ARS § 14-3502).
This brief overview of some important considerations associated with probate proceedings in Arizona is by no means comprehensive. Always seek the advice of a competent professional when making important probate decisions.
