Probate Court is where estates are administered when the decedent does not have a Complete Estate Plan that is aimed at Probate avoidance. In Arizona, if you pass away with less than $75,000.00 of assets, we won’t have to go to Probate Court. Instead, we can use an Affidavit of Heirship to collect any assets. If you pass away without a Probate avoidance Estate Plan, and your estate contains more than $75,000.00 of assets, or more than $100,000.00 of real estate, then your heirs will need to go to Probate Court to allow for the distribution of your assets to your heirs.
Sometimes, there is a Will involved in Probate, and if that is the case then the Judge will follow the terms of the Will. If there is no Will involved, then Arizona Law of Heirship will control, and the Judge will follow Arizona Law to distribute your assets to your heirs at law. Your heirs at law may not be those that you want to inherit your property, so it is still important to have a Complete Estate Plan, and not to rely on Arizona Law. A probate can either be an informal probate or a formal probate.
If your estate ends up in Probate, the first step will be to have a Personal Representative file for Probate in Court. This requires the filing of several documents, including a petition and a nomination for Personal Representative, among several other items. If there is not a Will, then Arizona Law will take over as to who can be the Personal Representative. There may be individuals that have first priority, and there may be a conflict when multiple people want to be Personal Representative. This can lead to undue costs and delay.
Once a Personal Representative is accepted, and the Court issues Letters Testamentary, the Personal Representative will start accounting for assets, and notifying potential beneficiaries under the law. They will also need to publish notice to any unknown creditors, and send proof of their appointment to any known creditors.
Creditors and expenses will be paid first, and there is a priority as to who gets paid first. Once an inventory and accounting is complete, the Personal Representative will propose creditor payments, and a final distribution. They must also file any final individual tax returns, as well as an estate returns in some instances.
Assuming there is not any litigation involved regarding who is a beneficiary, or who can be Personal Representative, once the proposed distribution is accepted by the Court, the Personal Representative can move forward with distribution, and eventually close the estate. This entire process can take anywhere from six months to two years, and it can cost anywhere from $5,000.00 to $10,000.00, or even more if there is dispute or litigation involved.
This entire process is not ideal. A well-designed, Complete Estate Plan can avoid the need for Probate altogether and is generally a much less expensive option over Probate. If you do end up in Probate Court, an experienced attorney can assist you through what is an overly complicated process.