Taking a Closer Look at Probate Law

Probate Administration

An estate is simply everything that you own while you are living and at the time of your death. When we die, our debts and taxes need to be paid and the assets that remain must be distributed. Everyone has the opportunity and right to choose who will receive his/her assets as well as the trusted individual(s) who will handle the administration. When courts are or become involved in administering an estate, the process is known as “estate administration,” “probate administration,” or simply “probate.”

A Last Will and Testament (or Will) is a legal document that gives you control over how your estate is handled after your death. A Will only works if it: 1) expresses your intent correctly and clearly; 2) is signed in the manner required by law, and; 3) can be demonstrated, after your death, that you did not revoke or destroy the document. When a Will is submitted to the Court with a request for action (i.e. Application or Petition), the Court “proves” the Will; or, in other words, the court determines whether the Will is valid.

If the Will is valid, the Court oversees the administration of the estate for the purpose of assuring that the intent of the person who made the Will is honored. The Court will formally appoint the individual(s) you name to administer your estate and give him/her/them the authority and power to act on behalf of the estate. In Arizona, we call the people appointed to administer estates “personal representatives,” whereas in other states, they are called executors (males) or executrixes (females).

If a person dies without a Will, they die “intestate.” Since many people die without doing any estate planning, including the creation of a Will, the legislature has provided laws that govern these situations. The law provides a list of people who are given priority to administer the estates of people who die intestate. Spouses are at the top of the list and are followed by adult children and/or adult grandchildren. If you have no spouse, no children, and no grandchildren, then your parents, if living, have priority, followed by your siblings. The individual, once appointed personal representative, is given not only the power to administer the estate, but also the duty to follow the Will and/or the law and act for the benefit of the heirs.

Whether you die in Arizona with a Will or not, the law requires a court to be involved if the total value of all assets you own when you die is $75,000 or more. A court need not be involved if your planning involves the use of a Trust or non-probate transfers. You can make non-probate transfers prior to death by signing a legal document that gives an asset or the right to an asset to someone else upon your death. Some examples of non-probate transfers are beneficiary designation on life insurance policies, payable on death financial account designations, and joint tenancies with rights of survivorship in land or house. The outcome of non-probate transfer, although deceivingly straightforward, can result in unforeseen and unwanted results; however, if you wish to avoid probate and everything goes perfectly according to your plan, non-probate assets can be used as a basic form of estate planning. Since life has a way of often being unpredictable, the best course of action is to use an experienced attorney to create a more reliable and dependable plan for asset control and transfer that can avoid probate.

Estates differ from person to person, just as relationships differ from family to family. Some estates are large, and some are small. The administration of some estates is complex, involving several parcels of real estate, business interests, retirement funds, and estate taxes. In contrast, others may involve only one bank account and some personal property. Whether your family and loved ones all get along and are cooperative or you find yourself dealing with family drama, Gillespie, Shields & Taylor can help you complete the process as painlessly as possible.

Gillespie, Shields & Taylor is available and willing to help you through probate regardless of whether you are the personal representative who needs advice to jump through the legal hoops and avoid personal liability or an heir/beneficiary who is not being treated justly or has evidence that the estate is being administered improperly.

Over the years, people have come to view probate as a negative process primarily because of the time delay and expense. However, probate is the legal procedure devised by legislatures to help people protect their assets and see that their intent, when they die or become unable to make decisions, are enforceable under the supervision of a court. While it is true that you will likely pay attorneys to help you jump through the hoops of probate, the process itself can be helpful and, in some family situations, necessary to see that your preferences and wishes are honored.

If the value of your total estate is less than $75,000, you may be able to avoid probate through the use of Small Estate Administration, which may involve something called a Small Estate Affidavit.

Whatever your personal involvement in the probate administration process might be, the highly qualified probate team at Gillespie, Shields & Taylor can help you understand your options and effectively implement the strategy that works best for you. Whether you are a family in need of a competent lawyer to read and explain a decedent’s Last Will and Testament to you and family members, you need help administering a trust or estate, or you need representation to resolve a probate or trust dispute, Gillespie, Shields & Taylor will skillfully guide you through the legal maze known as probate.

Probate Litigation

Misunderstandings, disputes, and overall contention can complicate the probate process and the resolution of the issues causing family discord, which sometimes needs to be resolved by taking the problem to the courts and letting a judge or jury decide the outcome. Probate litigation occurs when either a personal representative attempts to recover assets wrongfully taken from the estate or defends the estate from creditors or from individuals who challenge a Will or the administration of an estate. The following are general types of probate litigation.

Personal Representative/Trustee Litigation

The aging process can make people vulnerable to undue influence, abuse, neglect, and financial exploitation. If your parent, sibling, or child is being or was unduly influenced, abused, or exploited by a spouse, sibling, adult child, so-called friend, or caregiver, Gillespie, Shields & Taylor is the law firm who can successfully pursue assets wrongfully taken or misdirected.

A personal representative can file a legal action against individuals who not only exploit vulnerable adults, but also who exercise undue influence over the elderly to obtain access to their financial accounts, take possession of their real property, change their insurance policy beneficiaries, or change their legal documents such as Wills and powers of attorney. Litigation can also arise when an heir has been disinherited or believes he/she deserves more or different assets than those he/she is to receive under the terms of the Will. The personal representative, in this case, defends the wishes and desires of the decedent (i.e. person who died), as expressed in the Will. Sometimes an heir will contest or challenge the validity of the Will with the hope of receiving a greater share, which also requires the personal representative to defend the estate.

Best practice is for personal representatives to pay all allowable creditor claims, if estate funds are sufficient to pay all creditor claims, before making distributions to estate beneficiaries. Probate litigation may arise when a creditor seeks collection of an unpaid debt from a decedent’s estate. While creditors have the right under Arizona law to pursue compensation for their claim against the assets of an estate, skilled representation from an experienced probate attorney can ensure creditors receive only what they are entitled to within the legally-mandated timeline established by probate court.

Heir/Beneficiary Representation

Probate litigation can also occur when a personal representative refuses or fails to administer the estate (or a Trustee refuses or fails to administer a trust) properly and in conformity the law and the terms of the Will, or Trust of a decedent, which causes damage or harm to the decedent’s heirs or beneficiaries. When people create Wills or Trusts, they generally choose individuals in whom they have confidence and trust to serve as personal representatives or trustees. Unfortunately, we can sometimes misjudge the character of relatives, friends, associates (and even bankers or financial planners) as well as their willingness or ability to properly carry-out our wishes as expressed in a Will or Trust. A personal representative or trustee, who are estate fiduciaries, who fails to administer an estate or trust correctly can cause substantial damage to beneficiaries and may need to be removed or held accountable for his or her actions or inaction

Gillespie, Shields & Taylor represents heirs and beneficiaries who seek to protect or recover their beneficial shares from personal representatives or trustees who have violated their duties. Litigation in these instances may involve as little as a demand for an accounting or a more extensive legal action involving a breach of duty claim requesting removal/substitution of a personal representative or trustee.

At Gillespie, Shields & Taylor, we combine our decades of successful legal practice with a comprehensive understanding of how these complex probate matters work and how they affect the individuals and families involved. This allows us to provide clients with support that goes far beyond merely preparing paperwork or filing motions in court.

Even if you are unsure whether you have the grounds to sue another party involved in a probate case – or if you are uncertain about the cost-effectiveness of doing so – we encourage you to reach out for a no-pressure consultation. This way, our highly knowledgeable legal professionals can learn more about your case and accurately determine if our probate litigation services or some other legal remedy you may not have considered may be viable. Regardless of whether you find yourself as plaintiff or defendant in a probate or trust litigation case, having a talented lawyer on your side is often the single best way to protect your rights, your assets, and your family’s future.

Comprehensive Estate Planning Services

The ideal approach to probate often involves pre-planning to avoid probate altogether or at least attempt to minimize the efforts that will be expended by your loved ones and the costs that would otherwise be incurred due to lack of planning. End-to-end estate planning services from Gillespie, Shields & Taylor will give you confidence and peace of mind knowing that when you become unable to make decisions for yourself or die, the mechanism is in place to see that your financial affairs are managed in a timely and efficient manner according to your preferences, that your health care decisions are made by those you trust with your health and life, and that your assets will be distributed as you wish upon your death at the least cost to those you leave behind.

While some small estates with extremely straightforward assets can be adequately protected with a Last Will & Testament, most estate plans need to go far beyond this common document to provide truly comprehensive coverage. In fact, estate planning can involve many strategies beyond the mere distribution of assets upon your death, including important healthcare decisions. Some estate planning tools can even be implemented in such a way that they take effect during your lifetime.

This powerful and highly customizable instrument can be designed and implemented to provide control over the expenditure and distribution of your assets not only after you die, but also should you become incapacitated while you are living. Although durable financial power of attorney may allow a trusted agent to make financial decisions or to act on your behalf if you are unable to do so, a trust is a more reliable way of accomplishing the same objective because unlike trusts, powers of attorney are sometimes not honored by banks and financial institutions. A valid and well-written Trust, provides you with maximum control over your assets not only after your death, but also during your lifetime.

Gillespie, Shields & Taylor represents individuals and families with modest estates who want reliable estate planning counsel and advice and high-quality, legally enforceable estate planning documents that accurately reflect their wishes for a reasonable cost. A relatively small investment in estate planning will reduce potential headaches and, in the long run, save you and your family substantial time, effort, and money. We can ensure you address your estate planning goals while adhering stringently to the requirements set forth by the state of Arizona.

Arizona Probate Counseling & Probate Mediation/Arbitration

The Probate Counseling & Probate Mediation/Arbitration services offered by Gillespie, Shields & Taylor allow individuals and families employ our highly experienced attorneys to provide private help in resolving estate and trust administration issues without the cost and hassle of using the court system.

Probate Mediation/Arbitration

Mediation only works if all the parties involved in a dispute are willing to participate in good faith in settlement negotiations with the intent of coming to a speedy resolution, saving money, and preserving family relationships. In Mediation, the objective is to achieve an outcome that everyone can live with.

Arbitration only works if all the parties to the dispute are willing and agreeable to submit the dispute to a highly trained and experienced arbitrator and allow him or her to act as a private judge in deciding the disputed issues. If you prefer to handle family disputes regarding probate issues more quickly than a court and in the most efficient and cost-effective way possible, allow us to use our knowledge and understanding of the law to help you achieve this goal and hopefully preserve family unity through mediation or arbitration.

Probate Counseling

One of the Probate Counseling services offered by Gillespie, Shields & Taylor is designed for families who want more information before the probate process begins or hope to avoid family conflict and preserve family relationships during the probate process. Family misunderstandings and disputes can sometimes be prevented by organizing and holding a Family Meeting where provisions of the Will or Trust are read and/or discussed, probate procedure is outlined, and questions may be asked and answered. After scheduling the date, time, and location of the Family Meeting and providing us with a copy of the pertinent Will or Trust, our attorney will prepare for and conduct the meeting.

Gillespie, Shields & Taylor provides clients with reliable, high-quality counsel, trust amendments, and innovative documents designed to resolve anticipated estate and trust disputes. If you have a family member who may cause problems for other family members after you die or you have a mixed family and wish to protect your spouse from your children or your children from your spouse, we provide options/strategies to deal with and resolve latent issues so that you can protect your assets, assure that your intent is followed, and avoid the hassle and costs of future litigation.

Gillespie, Shields & Taylor also offers second opinion services. Perhaps you have already retained an attorney to represent you in a probate matter, but you are unsure of or need clarification about the case and how it is progressing. Our firm is available to review your existing probate case and oversee the work of your probate attorney, including his or her billings with the objective of ensuring that you understand the process and are receiving adequate representation.

Services range from top-notch legal research and facilitating discussions between disputing parties to avoid litigation to offering a well-informed second opinion about the language of a will – and more. Our comprehensive counseling, mediation, and arbitration services offer clients an expeditious and cost-effective way to work through complex probate issues that could otherwise become expensive legal quagmires.

We are also available for consultative purposes designed to help you understand the full range of probate alternatives that are available to save you and your heirs time and money.

Alternatives include:

Whether your family needs emergency assistance with time-sensitive probate dispute, or you and your spouse are simply ready to start a conversation about estate planning, please reach out to our Phoenix or Mesa office at your earliest convenience. Counseling and mediation services from Gillespie, Shields & Taylor can empower you with personalized legal advice,effective estate planning, and non-probate asset transfer strategies.

Gillespie, Shields & Taylor: Your Trusted Partner for Arizona Estate Planning and Probate Law

Effectively navigating Arizona probate law can be an extremely challenging prospect for those who lack the necessary legal background – especially if you’re already in the process of grieving the loss of a beloved provider. Thankfully, you don’t have to face probate court, trust litigation, or estate planning issues alone. You can take comfort in knowing that our probate attorney and our well-equipped support staff will work diligently until we have achieved the best possible resolution.

Contact us today to request a consultation and learn how we can help you navigate the Arizona probate court process.