What is Probate?

Probate is the process of validating and executing a will. If a will does not exist, an estate will go through probate and be distributed as dictated by state law. The actual probate process as well as distribution guidelines vary by state but here are the basic steps of probate. If a will exists, it will be presented to the court and validated. If the will is determined to be valid and is uncontested, the assets and debts of the estate then must be located, inventoried and verified. After all legitimate debts have been paid, the personal representative of the estate will then distribute the remaining assets as dictated by the will or state law.

Selecting an Appropriate Personal Representative

Your designated personal representative has a large role in carrying out your final wishes. He or she is responsible for meeting all the court-mandated probate requirements as well as executing your final wishes. He or she needs to be capable and willing to perform these duties. In an ideal world, it is helpful to select a personal representative that is not a beneficiary of your estate. This prevents any possible conflict of interest. However, this is not always possible. When choosing your representative, make sure it is someone you trust to execute your wishes and perform the job to the best of his or her abilities. Your representative can use funds from your estate to hire a probate lawyer to assist him or her through the process. Legal representation can help the estate move more quickly through the courts, making the process more manageable for everyone.

Three Types of Arizona Probate

Many states have acknowledged that probate can be a cumbersome process. Because of this, some states have developed different types of probate to try to make the process easier. Arizona has three versions of probate: informal, formal and supervised.

Informal probate is the easiest process of the three. This type of probate can only be used when there is an uncontested, valid will available. The court has a minimal role with the executor of the estate doing most of the legwork.

Formal probate is a process that requires more court involvement. This type of probate is used when there are legal issues that need to be decided. If the personal representative appointment or validity of the will are contested, formal probate is required. The purpose of formal probate is to resolve the outstanding legal issues around a will or estate so that it can then go through the process of being validated and distributed.

Supervised probate is the most involved process. The court will supervise the entire process and take an active role from start to finish. The personal representative must submit every proposed action to the court and obtain approval prior to moving forward. The more involved the court is with the proceedings, the more expensive and arduous the process can become. Even in the best of circumstances it is advisable for the executor for personal representative to consult with a probate lawyer. There are simplified probate procedures and paperwork available to small estates that qualify. Whether your estate’s needs are large or small,l a skilled attorney can help your representative meet all necessary requirements.

Some Assets Can Avoid Probate

Some accounts and assets can bypass the probate process altogether. If you have a bank account that is Payable on Death (POD) or Transfer on Death (TOD), these will typically be distributed directly to the person you have selected without being verified by the court. In addition, community property with right of survivorship will transfer directly to the living owners at the time of your death. Life insurance policy proceeds can also pass directly to the named beneficiaries. In order for these assets to pass to your loved ones, it is important that all your paperwork is in order. If you do not have your beneficiaries’ up-to-date contact information listed, a bank or insurance company may not be able to reach them. Or worse, if you have not nominated a beneficiary, your asset may have to go through probate, which could have been easily avoidable. A probate attorney can explain to you which assets will need to be included and which you can pass directly to your selected heirs.

A Lengthy and Expensive Process

While states have taken steps to make probate more manageable, it can still be a lengthy process. Legal conflicts over estates as well as ineffective personal representatives can drag out in probate for years. In the meantime, an estate’s assets are tied up and beneficiaries may be forced to wait to receive their inheritance.

There are some important steps you can take to make probate easier on your loved ones. First and foremost, be proactive. Work with a probate lawyer now to make sure that your estate plan is complete and all your documentation is in order. Next, go over your wishes with your loved ones. This will prevent any surprises at the time of your death and hopefully remove the possibility of conflicts after you are gone. Lastly, nominate your personal representative now and encourage him or her to use professional assistance when it comes to submitting your estate to probate. An experienced attorney can make this process as seamless as possible.

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