Types of Probate
Types of Probate
| Types of Probate Administration | ||
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Informal | Formal | Supervised |
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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: | |
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Real Estate | Personal Property |
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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 | |
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Subject To Probate: | Not Subject To Probate: |
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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:
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.
