What is Probate?

1. What is Probate?
Probate is the court-supervised process of transferring assets from a deceased person’s individual ownership to the heirs. If the deceased person left a will, the probate registrar will examine the will to determine whether it is admissible in court. Without a valid will, the default state laws will control.
The probate process involves extensive drafting and exchange of legal documents. Even a very simple probate may require an overwhelming amount of paperwork. Although standard forms are readily available, the challenge is to learn what forms to complete, how to complete them, and when to use them. Understanding the probate process is similar to learning a new language. Perseverance to complete the project is essential.
2. When is a probate action required in Arizona?
Under Arizona law, the general rule is that if the deceased person owned more than $100,000 of equity in real estate, or more than $75,000 of personal property (including physical possessions and money), then a probate action is required to transfer the assets to the heirs. However, there are numerous exceptions to this rule. For example, if an asset is titled “joint tenancy with right of survivorship,” the surviving owner inherits the property without probate. Other exceptions include assets titled in trust name or assets subject to a beneficiary designation.
If the deceased person owned assets subject to probate, but their value is less than the minimum amounts noted above, simpler affidavit procedures may be used to transfer the assets.
3. What is the process for opening a probate?
The initial application petitions for appointment of a personal representative. This person will be responsible for administering the probate. The probate process begins with the filing of an application with the probate court in the deceased person’s last county of residence. The application is accompanied by an assortment of other forms prescribed by the court. A bond must be posted by the personal representative, unless waived in the will or by all the heirs.
When the application is submitted, the initial objective is to obtain a certified copy of the Letters of Personal Representative from the probate court. The term is a strange one considering the typical meaning of the word “letter.” This is a good example of what makes probate confusing.
You would think the document might be called “Proof of Authority” or “Confirmation of Appointment,” but the probate courts continue to use the traditional – perhaps antiquated – term “letters.”
4. What are the steps in a typical Probate?
Step 1: Initiate Probate and Appoint Personal Representative (Submit application with bond or waivers of bond; receive Letters of PR)
Step 2: Notify Heirs, Devisees, and Creditors (Send notices to each heir and devisee; notify known creditors; publish notice)
Step 3: Inventory the Estate (Prepare inventory of all estate assets; re-title each asset into name of estate)
Step 4: Manage Claims (Pay valid debts; send out notices of disallowance if necessary
Step 5: Distribute the Estate (Determine who the beneficiaries are; transfer assets to beneficiaries)
Step 6: Close the Estate (Prepare final accounting or waivers of accounting; file closing statement)
5. What is the difference between formal and informal probate?
Most probate actions in Arizona are “informal,” which means they are completed with minimal court supervision. No visits to the court building are necessary and there will not be a judge overseeing the personal representative’s every move. A small number of probate actions are “formal,” which involve stricter notice requirements, court hearings and increased supervision. Formal probates are reserved for cases when there is a question surrounding the validity of the will, choice of personal representative, identification of heirs, or an asset requires increased court supervision.
About the Author
Thomas J. Bouman provides legal counsel in the areas of estate planning, estate settlement, and asset protection. He brings a highly systematic approach to the practice of law, which is critically important when wading through the complex, and often bizarre, legal requirements associated with estate and trust law. Mr. Bouman is author of the Arizona Estate Administration Answer Book and a prominent member of Wealth Counsel, LLC, the nation’s premiere organization of estate planning attorneys.
Probate is the court-supervised process of transferring assets from a deceased person’s individual ownership to the heirs. If the deceased person left a will, the probate registrar will examine the will to determine whether it is admissible in court. Without a valid will, the default state laws will control.
The probate process involves extensive drafting and exchange of legal documents. Even a very simple probate may require an overwhelming amount of paperwork. Although standard forms are readily available, the challenge is to learn what forms to complete, how to complete them, and when to use them. Understanding the probate process is similar to learning a new language. Perseverance to complete the project is essential.
2. When is a probate action required in Arizona?
Under Arizona law, the general rule is that if the deceased person owned more than $100,000 of equity in real estate, or more than $75,000 of personal property (including physical possessions and money), then a probate action is required to transfer the assets to the heirs. However, there are numerous exceptions to this rule. For example, if an asset is titled “joint tenancy with right of survivorship,” the surviving owner inherits the property without probate. Other exceptions include assets titled in trust name or assets subject to a beneficiary designation.
If the deceased person owned assets subject to probate, but their value is less than the minimum amounts noted above, simpler affidavit procedures may be used to transfer the assets.
3. What is the process for opening a probate?
The initial application petitions for appointment of a personal representative. This person will be responsible for administering the probate. The probate process begins with the filing of an application with the probate court in the deceased person’s last county of residence. The application is accompanied by an assortment of other forms prescribed by the court. A bond must be posted by the personal representative, unless waived in the will or by all the heirs.
When the application is submitted, the initial objective is to obtain a certified copy of the Letters of Personal Representative from the probate court. The term is a strange one considering the typical meaning of the word “letter.” This is a good example of what makes probate confusing.
You would think the document might be called “Proof of Authority” or “Confirmation of Appointment,” but the probate courts continue to use the traditional – perhaps antiquated – term “letters.”
4. What are the steps in a typical Probate?
Step 1: Initiate Probate and Appoint Personal Representative (Submit application with bond or waivers of bond; receive Letters of PR)
Step 2: Notify Heirs, Devisees, and Creditors (Send notices to each heir and devisee; notify known creditors; publish notice)
Step 3: Inventory the Estate (Prepare inventory of all estate assets; re-title each asset into name of estate)
Step 4: Manage Claims (Pay valid debts; send out notices of disallowance if necessary
Step 5: Distribute the Estate (Determine who the beneficiaries are; transfer assets to beneficiaries)
Step 6: Close the Estate (Prepare final accounting or waivers of accounting; file closing statement)
5. What is the difference between formal and informal probate?
Most probate actions in Arizona are “informal,” which means they are completed with minimal court supervision. No visits to the court building are necessary and there will not be a judge overseeing the personal representative’s every move. A small number of probate actions are “formal,” which involve stricter notice requirements, court hearings and increased supervision. Formal probates are reserved for cases when there is a question surrounding the validity of the will, choice of personal representative, identification of heirs, or an asset requires increased court supervision.
About the Author
Thomas J. Bouman provides legal counsel in the areas of estate planning, estate settlement, and asset protection. He brings a highly systematic approach to the practice of law, which is critically important when wading through the complex, and often bizarre, legal requirements associated with estate and trust law. Mr. Bouman is author of the Arizona Estate Administration Answer Book and a prominent member of Wealth Counsel, LLC, the nation’s premiere organization of estate planning attorneys.