One of the goals of Silverman Law Offices is to assist and counsel our clients to create an estate plan which avoids the need to use the court system.   This is called probate.   A living trust based estate plan usually avoids probate because the assets are held in one’s trust, not in the person’s (decedent’s) name.    The trust provides for the administration of the estate without the need for probate.  

Probate, however, is often required with a Trust because the decedent neglected to retitle property into the Trust, called trust funding.   In fact, we find that this occurs very frequently.   Silverman Law Offices takes the responsibility to assist our clients with the trust funding process to assume full trust funding.

Other occasions where probate is necessary is where the decedent died with only a Will or with no Will at all.

The term "Arizona probate" means an Arizona Superior Court monitored legal proceeding by which the liabilities and probate assets of a deceased person ("decedent") are paid and administered and the probate assets of the estate are transferred by a personal representative of the estate appointed by the Court. 

What does "Testate" & "Intestate" Mean?

If an Arizona resident dies with a Will that complies with the requirements of Arizona probate law, the person is said to have died "testate," which means he or she has a valid Will and the decedent's probate assets pass to the people or entities named in the Will.  An Arizona resident who dies without a valid Will dies "intestate" and the decedent's probate assets pass as provided in Arizona's laws of intestate succession.   When an Arizona resident dies without a valid Will, Arizona law will determine who gets the decedent's probate assets, which may result in people inheriting property contrary to the decedent's wishes.

What is the difference between a devisee and an heir? 

A "devisee" is a person designated in a Will to receive a devise, which is a disposition of real or personal property made under a Will.  An "heir" is a person, including the surviving spouse, who is entitled to property of a decedent under Arizona's law of intestate succession.

What are the Types of Arizona Probate Proceedings?

There are three types of probates in Arizona, informal, formal and supervised.  Most Arizona probates are informal because they are usually less expensive in terms of attorneys' fees and are handled quickly and usually without contest.  Not all estates, however, are eligible for informal probate.  Contested estates are usually resolved in a formal probate, which can include court hearings, depositions, motions, discovery and a trial just as any other Superior Court litigation.

What is an Informal Arizona Probate?

An informal probate is an Arizona Superior Court proceeding overseen by a "registrar," which means a judge, the clerk of the court or a court commissioner designated to oversee and administer informal probates.  Because informal probates have the lowest level of court supervision, they generally can be completed for less legal fees and time than formal and supervised probates.  An informal probate is conclusive as to all persons until superseded by an order in a formal testacy proceeding. .

Who May Initiate an Arizona Probate?

Any of the following may initiate an informal probate:

1. The surviving spouse of the decedent.
2. An adult child, a parent, a brother or a sister of the decedent.
3. A person who is an heir of the decedent.
4. A person nominated as a personal representative by a probated Will or the Will for which probate is asked or pursuant to a power conferred by the Will.
5. If the decedent was a nonresident of Arizona, any person who is qualified under paragraphs 1 - 4 above or a personal representative appointed in the decedent's state of domicile or the nominee of the personal representative.
6. If the decedent was a veteran, the department of veterans' services.
7. Any creditor of the decedent after 45 days after the death.
8. The public fiduciary if no person is qualified and willing to serve as personal representative under 1 - 7 above.

What is a Formal Arizona Probate?

A formal probate is litigation in Arizona Superior Court to determine whether a decedent left a valid Will.  A formal probate is more time consuming and expensive than informal probate because it involves court hearings and more court involvement in the estate administration.

Who Can be Appointed Personal Representative of an Arizona Probate?

Arizona probate law provides that the following persons who are not disqualified may be appointed as personal representative of a testate or an intestate estate (regardless of whether the probate is formal or informal) in the following order of priority:

1. the person with priority as determined by a probated Will, including a person nominated by a power conferred in a Will.
2. the surviving spouse of the decedent who is a devisee of the decedent.
3. other devisees of the decedent.
4. the surviving spouse of the decedent.
5. other heirs of the decedent.
6. if the decedent was a veteran, the department of veterans' services.
7. any creditor of the decedent after 45 days after the death of the decedent.
8. the public fiduciary.

A person is not qualified to serve as a personal representative if the person is:

1. under the age of eighteen.
2. a person whom the court finds unsuitable in formal proceedings.
3. a foreign corporation.

When is an Arizona Probate Necessary ?

Probate is not always required or necessary in Arizona after a person dies.   When a resident of Arizona dies, there are two primary reasons to probate the decedent's estate with an Arizona probate court:

1. the decedent has assets that cannot be transferred to the decedent's heir(s) without a probate, and/or
2. the estate of the decedent desires to eliminate or reduce the claims that creditors may make against the estate.  Under Arizona law the general rule is that creditors who do not file a formal claim with the estate within four months after the publication of a notice to creditors are barred forever of bringing their claims. 

What are Probate Assets ?

Probate proceedings involve only assets commonly referred to as "probate assets."  Arizona probate courts do not have jurisdiction over and cannot administer assets that are not probate assets.  Probate assets include all real property and personal property, including intangible personal property:

1. in which the decedent had an interest at the time of death, and
2. that are not transferred by operation of law or by contract to a person or entity.

The decedent must have had an interest in the property at the time of death or the property is not a probate asset.   This is why a fully funded living trust avoids probate.   The decedent does not have an interest in the property if it is titled in the name of the trustee of the living trust.