What is Probate?

“Probate” is the general term used to refer to the process whereby a person's assets are transferred to their heirs with court involvement. While the term “probate” is used broadly, there are actually two different, albeit similar, processes depending on whether a decedent (the person who passed away) had a will or not. If a decedent dies without a will, their assets will pass by intestacy. “Intestacy” or “intestate succession” refers to the default rules for where a person's property goes after they pass away. The people set to receive property via intestate succession are called “heirs”. Because the transfers by intestacy effect peoples' legal rights to property, someone must be appointed by the court to supervise the administration of the decedent's estate. This person is called the “personal representative” in Arizona. Once the court appoints a personal representative, that person is required to carry out several steps to administer the decedent's estate.

If, on the other hand, a decedent dies with a will, then their will must be admitted to probate (often shorthanded as “probated”) for it to be given effect by the Courts. Typically, a personal representative is appointed at or around the same time as the will is submitted for probate. After the decedent's will is admitted to probate, the steps for administering the estate largely resemble those for intestate succession, however, the main function of a will is that it modifies the default rules of intestacy.  As such, the contents of a given will can change some things about the process, usually where or how property is distributed. People set to receive property via a probated will are called “devisees”.

People can avoid court involvement by utilizing one or more of the specific methods that allow people to transfer assets without engaging with the probate/intestacy process. Some examples of “non-probate transfers” include trusts, pay-on-death designations for accounts, most jointly-owned bank accounts, and joint tenancies with right of survivorship.

Administration vs. Litigation

Estate Administration refers to the process of taking a case through the legally required steps to transfer a decedent's assets to their successors in interest (their “heirs” or “devisees” depending on if they have a will). There are numerous steps, technicalities, and procedures that people must adhere to in order to complete the administration process. While it can seem daunting, uncontested administrations are generally not very problematic. The estate administration process gets a bad reputation for being extremely lengthy. While it is true that there are some mandatory waiting periods (for example, you must wait four months after publishing notice to unknown creditors), the largest source of delay is conflicts among beneficiaries.

Litigation involving estates is what gives “probate” a bad name. When a beneficiary makes an objection with the court regarding something about the administration process, this makes the administration “contested”. Contested proceedings have an expanded set of rules and procedures. These include more mandatory waiting periods to allow people to respond to filings, as well as potential hearings before judges or other judicial officers. As such, even a relatively minor objection can cause significant delays and dramatically increase the cost of administering the estate.

Because of the nuances of the administration process and the risk of litigation popping up, it is strongly advisable to hire counsel to support you if you are taking on the responsibility of serving as personal representative. Your attorney can be as involved, or as hands-off, as the situation requires, but it is always a good idea to have guidance available. At Holland Law Group, we can help you navigate the probate process so you don't need to try to figure this out on your own.  Schedule a consult today at 623-250-7890.