Types of Probate

Types of Probate

Estate & Business Planning Attorney

Types of Probate

Types of Probate Administration
  • Fastest and least expensive
  • Minimal court supervision
  • There must not be objections to the will, personal representative, or his/her actions
  • More costly and time consuming than Informal
  • Some court supervision
  • May be appropriate where there is a contest to the will, irregularity in the will, there are heirs who are minors, or there are objections as to who should be the personal representative
  • The court oversees nearly every aspect of the probate administration
  • May be necessary if specified in a will, insolvency of the estate, or if it may be otherwise needed to protect an heir, creditor, or other interested person

The three main types of probate in Arizona are Informal, Formal, and Supervised. Much of the difference depends on the amount of court supervision required to complete the process. Additional types of probate exist but are not as common.

Informal Probate

Informal probate is usually the quickest of the probate processes because formal court hearings are not necessary for determining the validity of the will or the heirs named in the will. In an informal probate, the personal representative of the will can distribute the property and assets of the estate with minimal supervision by the court. As long as the will is not contested or objections exist to the action of the estate’s personal representative, the court’s involvement will be limited to opening probate and closing the estate when probate is finished.

The probate process begins when the personal representative files an application to a probate registrar, rather than a judge, to request appointment as personal representative and to accept the will, if one exists. The registrar approves the estate to proceed informally and makes sure the paperwork, consisting of the will, petition for informal probate, affidavit of acceptance by personal representative, and list of interested persons, is complete. Once the estate is approved, the registrar is not involved until the final accounting is due.

Formal Probate

Formal probate typically occurs when the requirements of informal probate are not met and court involvement is necessary. In these situations, some court involvement, including a hearing, is required to oversee the process and settle any disputes. Because of the hearing and other formalities, formal probate is more expensive and time consuming than informal probate.

Signs that formal probate may be appropriate include:

    • There are irregularities in the will, such a will that is not self-proving (notarized with two witnesses)
    • Someone contests the will
    • The heirs include minors
    • An heir or devisee objects to the appointment of a personal representative.
    • More than one person wants to serve as personal representative

Formal probate begins with a probate attorney filing a petition asking a judge to 1) determine the authenticity and/or validity of any existing will, 2) appoint a personal representative, and 3) determine heirs, if necessary.

When the petition for formal probate has been received, the court will review the petition and approve the personal representative. The personal representative may then begin addressing outstanding issues in the estate. Formal probate gives the petitioner access to the judge later on if a judge’s signature is required following appointment of a personal representative. The formal process often is more costly due to consistent attorney involvement in getting the court’s approval and signature and in attending any required hearings.

Supervised Probate

Supervised probate is the traditional form of probate and involves the most court supervision. Supervised probate can be requested by interested persons (Title 14-3502). In this type of probate, the Arizona court oversees and administers all aspects of the process such as opening the estate, approving attorneys, taking statements of creditors, appointing the personal representatives, and his or her administration of the distribution of assets (Title 14-3504).

Supervised probate may be necessary when:

  • The decedent requests it in his or her will
  • An estate’s liabilities exceed the value of its assets
  • There is legal action against the estate
  • The court finds it necessary to protect the decedent’s estate

Other circumstances may also make it necessary. Supervised probate is the most expensive and lengthy type of probate, but it is also the least common.

Other Types of Probate

Special Administration

Special administration is the process of appointing someone to act as a temporary fiduciary when a delay is expected in appointing a permanent fiduciary. The temporary fiduciary, or special administrator, is appointed by the probate court to oversee and preserve the deceased’s assets. Delays are common when a will is contested or when there are problems serving notice on interested parties, and in other situations. A special administrator may be necessary whether or not a will exists.

Proof of Authority

A Proof of Authority for Personal Representative is a type of probate action designed to transfer Arizona real estate or personal property owned by a deceased non-resident. For example, if a person who owns property in Arizona passes away and has no family, personal representatives, or beneficiaries in Arizona, then a “foreign” personal representative would need to petition the Arizona probate court to act as personal representative for that property. Proof of Authority allows for a personal representative to collect and/or sell assets without having to open an ancillary probate.

Affidavit of Succession to Real Property

Arizona statutes allow for the avoidance of probate in some circumstances for small estates by way of an affidavit of succession to real property. (ARS 14-3971). In addition to other qualifications, the value of the decedent’s real property (real estate) at the time of death may not exceed $100,000 less any liens or encumbrances on the property, such as a mortgage. The successors to the decedent’s interest in the real property must wait at least six months after the death of the decedent before filing the affidavit with the appropriate court.

Personal property (property which is not real estate such as clothing, cash, jewelry, or bank accounts) valued at no greater than $75,000 less any liens or encumbrances against that property may also be transferred outside of the probate process by using a small estate personal property affidavit. A surviving spouse may present an affidavit to the employer of the decedent in order to recover wages, salary, or other compensation that was owed to the decedent which is not in excess of $5,000.

Among other criteria, for the above options to apply there must not be an application or petition for the appointment of a personal representative pending or a personal representative which is currently appointed in any jurisdiction. The applicant must also demonstrate that he or she is entitled to receive the decedent’s property.

When is an Estate eligible for Small Estate Administration?
An estate is eligible when the value of real estate and/or personal property is:
Real Estate
Personal Property
  • Total value less any liens or encumbrances must be less than $100,000
  • Funeral expenses, expenses of the final illness, and other unsecured debts have all been paid
  • At least six months must have elapsed since the decedent’s death
  • No federal estate taxes are due
  • A personal representative is not appointed nor is there a pending application for such appointment; OR a personal representative has already been discharged for over one year since closing
  • Total value less any liens or encumbrances must be less than $75,000
  • Funeral expenses, expenses of the final illness, and other unsecured debts have all been paid
  • At least thirty days must have elapsed since the decedent’s death
  • A personal representative is not appointed nor is there a pending application for such appointment; OR a personal representative has already been discharged for over one year since closing

Ancillary Probate

Ancillary probate is usually necessary when someone who has passed away owns property in states outside of where he or she resides. The primary probate takes place where the decedent lived, and the ancillary or secondary probate falls under the jurisdiction of the state where additional property exists.

Generally, heirs do not need to travel out of state as part of the ancillary probate process. Ancillary probate can be avoided with sufficient planning and properly setting up ownership into a joint tenancy with right of survivorship. You can also record a transfer-on-death deed in the state the property is located, if that state allows such a deed.

Non-probate Assets

Not all assets are subject to probate. Generally, probated assets are those which are titled in the decedent’s sole name at death. Assets which are not included in probate include the following:

  • Joint and Survivor tenancies where there is a surviving tenant;
  • Assets that are placed in a trust;
  • Assets that have a named at-death beneficiary or beneficiaries who are surviving (retirement accounts, life insurance contracts, etc.)
  • Financial accounts that contain a designated payee on death
  • Real property with a beneficiary deed
Assets Subject to Probate vs. Not Subject to Probate
Subject To Probate:
Not Subject To Probate:
  • Property disposed of by a Will
  • Property left without a Will
  • Real estate owned without any right of survivorship or where there is not a beneficiary deed
  • Insurance policies and retirement accounts without a designated beneficiary
  • Bank accounts without beneficiary designations
  • Stocks and bonds without beneficiaries
  • A car titled solely in the decedents name
  • Property held in a Revocable Trust
  • Real estate held as community property or joint tenancy both with a right of survivorship
  • Real estate owned with a beneficiary deed
  • Insurance policies and retirement accounts with designated beneficiaries
  • Bank account with a payable on death or transfer on death clause
  • Stocks and bonds owned jointly with a right of survivorship, or with a designated beneficiary
  • A car owned jointly with a right or survivorship or a designated beneficiary

Subsequent – Reopening probate that was closed

Subsequent probate is the process of reopening a previously closed probate. While closing an estate is meant to be final and conclusive, there are times when reopening probate is necessary. When a judge receives a request to reopen a closed probate, he or she will consider the petitioner’s reasoning, evidence, and whether the claim falls within the statute of limitations for reopening probate. Some of the commons reasons for reopening probate include:

  • Reopening Probate to Correct an Error

    If an error of fact or law in a closed probate is discovered, a probate judge has the right to file a motion to reopen the probate. This must be done within three years of the original decision and no more than one year after the discovery.

  • Reopening Probate Based on a New Discovery

    Interested parties may be able to reopen probate based on a new discovery that occurred after probate was closed. The interested party must file a petition to reopen probate within two years of the decedent’s passing or within one year of the estate’s closing, whichever deadline occurs first. Four common discoveries that may warrant reopening probate include:

    • Discovering a will
    • Discovering undistributed assets
    • Discovering claims against the estate
    • Discovering an heir

  • Reopening Probate Due to Litigation

    The total value of the assets within a decedent’s estate may be impacted by litigation. A decedent’s family, for example, may sue another party for wrongful death and be awarded damages. Conversely, other parties could sue the decedent for wrongdoing. These situations could result in either new assets becoming part of the estate or a judgement against the estate. As this could alter the final disposition of the decedent’s estate, probate courts will often delay closing the estate until after the litigation has been finalized. Rarely, however, litigation could result in the reopening of probate.

  • Contesting the Actions of the Personal Representative

    The interested parties to a decedent’s estate have a limited right to contest the actions of the estate’s personal representative. An interested party would need to file a complaint with the court within six months of the closing of the estate or within two years of the death of the decedent, whichever date occurs first. This deadline, however, may not be a bar to filing the complaint after the deadline in cases of fraud, misrepresentation, or inadequate disclosure related to settling the decedent’s estate by the estate’s personal representative.

How to Reopen Probate

If you believe you have discovered something which may require reopening probate, you should consider consulting with an experienced probate attorney. The attorney will be able to help you to determine if you have sufficient grounds for reopening probate and can assist with preparing and submitting a petition to reopen probate along with the evidence which is often required to support the petition.

Redistributing Assets from a Closed Estate

Although reopening probate to address newly discovered assets is often much simpler, it is possible to reopen probate to redistribute assets or to settle new claims. This can often be problematic, however, because assets which have formerly been distributed in the prior legal proceeding may have already been sold, spent, or otherwise disposed of by the heir or beneficiary.

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