After someone passes away, their loved ones have to figure out what to do with their “stuff.” Whether they left a Will or not, their estate almost always goes through probate. During the grieving period it may be hard to focus on legal details. However, it is important to know how to probate an estate.
First, probate literally means “proving” the Will. It’s a superior court proceeding where the judge appoints a personal representative for the estate of a deceased person. Usually, the personal representative is the person named in the Will, if there’s a Will.
The personal representative will:
- gather the estate assets,
- pay the decedent’s last expenses,
- pay valid claims against the estate,
- file any tax returns that are due, and
- distribute remaining estate assets to the appropriate heirs.
When it comes to gathering the estate assets, it’s important to remember that not all of the decedent’s property will pass through the probate proceeding. For example, financial accounts may go directly to the beneficiaries designated on the account. Property, including real estate, may be titled in such a way that the property interest transfers to a co-owner or someone with right of survivorship.
Once the personal representative and family have an idea of what the estate is worth, they can choose the type of probate proceeding they need. They may also elect to file a small estate affidavit if the estate meets the following criteria:
- The value of personal property does not exceed $75,000 and it’s been at least 30 days since the decedent passed; and/or
- The assessed value of real property located in Arizona (minus liens and encumbrances in place on decedent’s death) does not exceed $100,000 and it’s been at least 6 months since the decedent passed away, and/or
- The surviving spouse files to collect up to $5,000 in wages owed to the decedent, and/or
- A person entitled to real and/or personal property has the legal right to file the small estate affidavit under certain circumstances.
Small estate affidavit forms can be found on the superior court website for the county in which the deceased person lived. For example, a Maricopa County resident can go here to find forms and instructions: https://www.superiorcourt.maricopa.gov/sscDocs/packets/pbse1z.pdf.
If the estate cannot be handled as a small estate, then there are three ways to probate an estate: informal probate, formal probate, and supervised probate.
This type of proceedings has little, if any, court supervision. The personal representative usually does not have to attend any court hearings.
Only the following people may file an informal proceeding:
- Decedent’s spouse,
- An adult child or parent of the deceased,
- A sibling or half-sibling,
- One of decedent’s heirs,
- The personal representative named in the decedent’s Will, if one exists,
- A representative of the Department of Veteran’s Services if the deceased person was a veteran, and
- A creditor of decedent, only if more than 45 days has passed since the date of death.
If an informal probate is appropriate, forms and instructions can be found on the superior court website for the county in which the deceased person lived at the time of death.
Please note that you will have to complete training before serving as personal representative of the estate. In fact, you can submit your Certificate of Completion of Training when you file your Application.
To informally probate an estate:
- First, determine if you are an appropriate person to serve as personal representative.
- Then, locate anyone else who could be appointed personal representative. Ask them to sign a Waiver of Appointment stating they agree to let you serve as personal representative.
- Mail or otherwise deliver the waiver to all parties with an interest in the estate. This includes heirs, children, spouse, creditors, and so on.
- Come up with an estimate of what the estate is worth. The people who stand to receive the decedent’s property can agree to have you serve as personal representative without bond. If so, they should sign a Waiver of Bond.
- Mail or otherwise deliver the Waiver of Bond to all interested parties.
- Complete the Probate Information Cover Sheet, Informal Checklist, Appointment of Personal Representative and Admission of Will, and attach the original Will to the application. Make enough copies to send to all the interested parties.
- File the Application and related paperwork in the appropriate court. Check with the clerk before filing to find out how much the fee will be.
- Send copies of the filed documents to all interested parties.
- Note: If you are unable to locate heirs, you may have to publish a notice. Instructions are contained in the packet you can get from the county clerk’s office or from their website.
- Fill out the Proof of Delivery or Mailing of Notice Application.
After You Have Been Appointed:
- Go about gathering assets and claims.
- Once you feel the estate is almost ready to close, you’ll need to file a Petition for Approval of Final Accounting and any Deed of Distribution.
- Complete the Petition found on the county superior court website. Make copies for yourself, the Court Accountant, and each interested party. Then file the original with the clerk, taking along the copies also.
- The Court Accountant will review your case. If there are no questions, you’ll receive a non-appearance hearing. If there are questions, you may be asked to file a response.
- Send copies of the Notice of Non-Appearance hearing to everyone. Also send copies of the following documents to the judge/commissioner who will be handling your hearing: Notice of Hearing, Proof of Notice, Order Regarding Petition for Approval of Accounting, and Petition for Approval of Accounting. You do not have to show up at this hearing. However, if someone shows up with an objection, the court will set a new hearing that you must attend.
To close out the estate:
- When you have fully administered the estate, complete the Closing Statement. Mail copies to heirs, creditors, and anyone else who demanded notice. File the Closing Statement.
- Before filing for informal probate or at any time during informal administration of an estate you may realize that this estate needs more than an informal probate.
As with an informal probate, you will need to complete training before serving as personal representative.
Formal probate may be preferred over informal probate for a number of reasons. For example, if the Will is being contested or more than one person is qualified to be the personal representative, court supervision might be needed.
The procedure for a formal probate is very similar to the informal probate process. The exception is that greater court supervision is required. Many of the documents you’ll file as personal representative must be filed with the court and may even require court approval.
You’ll file a petition for formal probate, instead of informal. Include the following in the petition:
- Request an order regarding the Will that was presented, if the decedent left a Will.
- Include a statement regarding the Will – was it filed with the Court, did the decedent sign a Will but the original was lost or destroyed?
Once you’ve been granted letters of administration, you can start finalizing the estate. As soon as your job is done, file a petition to close the estate and present an accounting.
Occasionally, due to major legal issues, an estate may need a more in-depth level of court oversight. This leads to a supervised probate proceeding.
If the decedent’s Will asked for court supervision during probate, or if the court finds that some parties need protection, a supervised probate proceeding will be warranted.
During this type of probate, the court maintains authority over the estate. The personal representative is responsible to the court and must follow court directions. All other duties are the same as any other personal representative.
Starting a supervised probate proceeding is very similar to starting an informal probate. However, throughout the pendency of the probate, the court may enter orders directing the personal representative to take action or not take action. At the conclusion of the estate administration, the supervised personal representative will file an accounting with the court. An accounting will also be needed if the personal representative resigns or is removed.
Probate Can Be Complex.
Depending on the size of the estate, the complexity of family relationships, and the organization of the decedent, an estate can be difficult to administer. But you don’t have to do it alone.
At the Keystone Law Firm, we use our estate planning and probate experience to help clients like you. Call us at (480) 418-8448 or visit our website at keystonelawfirm.com to check out some of our free seminars. Serving the greater Chandler area, including Mesa, Ahwatukee, Sun Lakes, Gilbert, and Tempe.