Probate in Arizona is the process through which the Arizona Superior Court validates a will and appoints a personal representative who gathers the assets of the decedent, pays the liabilities, and distributes the remaining assets in accordance with the provisions in the will.
Informal probate is a summary procedure and is not litigation. A court officer, called the Registrar, can informally act without a formal hearing. The Registrar can, inter alia, give a will official status, appoint a personal representative, and close the estate.
Formal probate is litigation and requires at least one hearing. Arizona law requires formal probate in a number of different circumstances, e.g. when an heir or devisee objects to the appointment of a personal representative. ARS § 14-3203(B). Because of the hearing and other formalities, formal probate is more costly than informal probate.
The type of notice required depends upon whether the probate is informal or formal.
Notice in Informal Probate Proceedings
Section 14-3306 of the Arizona Probate Code requires that the heirs or devisees of an estate be notified of an application for informal probate proceedings. Such notice “shall be delivered or sent by mail to each of the heirs and devisees whose address is reasonably available to the applicant.” ARS 14-3306(B). If notice is provided as prescribed, such heirs are “barred from commencing a formal testacy proceeding to contest the probate of the will after four months have elapsed from receipt of the information.” Id. § 3306(B). However, “[a]n heir to whom the information is not given may contest the informal probate [within the later of twelve months from the informal probate or two years from the decedent's death]” and force the informal probate to be set aside.Id. § 3306(B).
Notice in Formal Probate Proceedings
Section 14-3403 imposes slightly different requirements as to who must be notified of formal probate, specifically:
Notice shall be given to the following persons: the surviving spouse, children and other heirs of the decedent, the devisees and executors named in any will that is being, or has been, probated, or offered for informal or formal probate in the county, or that is known by the petitioner to have been probated, or offered for informal or formal probate in another jurisdiction, and any personal representative of the decedent whose appointment has not been terminated.
However, the most significant difference between the notice requirements applies when the whereabouts of certain heirs are not known, specifically:
In addition, the petitioner shall give notice by publication one time at least fourteen days before the hearing to all unknown persons and to all known persons whose addresses are unknown who have any interest in the matter being litigated.
Although commencing a formal probate proceeding so as to avoid an heir commencing a formal probate proceeding at a later date may seem overly aggressive, such a course of action can help to avoid the potential added cost of commencing a formal probate after an application for informal probate has been made and informal probate has begun.
This brief overview of some important considerations associated with formal and informal probate in Arizona is by no means comprehensive. Always seek the advice of a competent professional when making important financial and legal decisions.