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Wills and Living Wills

Questions & Answers

Question: How do I begin to file probate if there is no will?

Answer:

When a person dies (called the decedent) without leaving a valid will, that person has died intestate. Each state has laws on how to address intestate estates that involve distribution of decedent’s assets to the spouse (if there is one) and/or living relatives (called the decedent’s heirs), if there are any. If there is no spouse or living heirs to pass the decedent’s estate to, it goes to the state.

One way to avoid this from happening is to encourage everyone to write a will even if their estate is small. Probate is a legal process that is used to determine who the heirs are, and to administer the estate (the property) of a person that has died (called the decedent). There are different types of probate actions that must be followed depending upon factors such as the total value of the estate and whether it is being challenged. There is formal probate, informal probate and small estate administration. Most small estates can use informal probate or small estate administration. These are less expensive and easier ways to administer the decedent’s estate. The small estate administration process can be completed without the use of an attorney by filling out the forms provided by the Maricopa County Court Self Service Center online. The small estate process has specific requirements that the estate must meet before the process can be used and probate avoided.  Carefully read the rules before you proceed in this manner.  Generally, the majority of estates are addressed through informal probate, and that is the process that is described here.

The same procedure for informal probate is used regardless of whether an original will is located or no will can be found. Application can be made by a variety of people who have a legal interest in the decedent’s property, such as surviving spouse, adult child, parent, sibling, an heir, and others as defined by law in special circumstances such as creditors after 45 days. (A.R.S. § 14-3301(A)).

The first step is to determine who is an appropriate “personal representative.” This involves notifying other potential personal representatives and obtaining their legal permission to act in that capacity on behalf of decedent’s estate. The court may require the personal representative to post a bond in an amount equal to the value of the assets in the deceased’s estate, unless all interested parties have agreed to waive this requirement. After the court appoints a personal representative, the court issues to the personal representative a document that gives the personal representative the legal authority to act on behalf of the estate (this document is called “letters of administration”). The next responsibility for the personal representative is to give notice to creditors to file any claims against the estate for outstanding debts. The personal representative also gathers up the decedent’s assets, files an inventory with the court (or forwards it to all interested parties), manages the assets, and accounts to the beneficiaries (those who stand to inherit as heirs) during the administration of the estate. The personal representative also verifies and pays the decedent’s debts and any taxes that were owed by the decedent or the estate. The personal representative may, but is not required to, file a final account with the court. Typically this process is used only if a formal closing is needed or the personal representative needs to have the court resolve disputes as to how the estate was distributed. Most of the time an informal probate is closed informally, meaning that the Personal Representative sends an accounting to the heirs and if no objections are received, he/she simply files a closing statement with the court which then discharges the Personal Representative from further duties.

If real estate is being distributed, then a Deed Of Distribution must be prepared, it must be filed with the court and a certified copy must be recorded in the county where the property is located. The specific detailed requirements and forms to file for informal probate are available at the Maricopa County Superior Court Self Service Center online.

Generally, this process must be started within two years of the decedent’s death. Note: there are certain limited exceptions to the two-year limitation for informal probate listed in Arizona law. (A.R.S. § 14–3108). An attorney may be of assistance in determining whether the situation qualifies for one of the exceptions or with handling the more complex “formal” probate process for which forms and instructions are not available from the court. A formal probate will always require a hearing in front of a judge.

February 25, 2007