In Arizona, probate court is only mandatory when the total value of an estate exceeds a threshold set by the state.  If the value of all the personal property of and estate is less than $75,000 or the value of real estate owned by the estate is less than $100,000, you can avoid probate through the use of a Small Estate Affidavit, which involves a process that is usually less involved, less time consuming, and less expensive than probate.  Regardless of the size of the estate in question or the assets involved, a probate lawyer from Gillespie, Shields & Taylor can help you keep the process on track and ensure full compliance with Arizona law.

A Last Will & Testament allows you to nominate a trusted person to manage your assets after your death.  Under Arizona law, this person is known as a personal representative (i.e. executor or executrix). Within the Will you give specifically direct to whom and how your assets are to be divided and distributed after your death.  A will must be well-written and signed with specific formalities required by Arizona law if your intent is to be not only accurately expressed, but enforceable under law. 

If you die with a Will, you die “Testate” and the Will controls who manages and distributes your assets.  If you die without a Will, you die “Intestate” and Arizona law determines who manages your estate and to whom and in what amounts your assets are distributed.  Generally speaking, your estate will be administered under the same probate procedures whether you die testate or intestate.

A probate proceeding can be opened by application to a probate registrar (informal probate) or by petition to a court (formal probate). Informal and formal probate require the same paperwork to be filed; however, with informal probate the registrar reviews the filed documents instead of a judge or commissioner, no advanced notice is given to heirs/beneficiaries or publication of notice is involved, and an appointment of personal representative can be obtained within several days instead of a month or more.  When a Will is filed informally or formally, the registrar or judge must “prove” (validate) the Will. 

In an informal proceeding the registrar makes an initial determination as to whether the Will appears to be valid. If the registrar believes the Will is valid, the Will is admitted to probate and a personal representative is appointed, who must shortly thereafter notify all heirs and beneficiaries of the appointment and mail each a copy of the Will.  If the registrar determines that she cannot admit the Will to Probate or appoint a personal representative for any reason, the person seeking to administer the estate must file a Petition and formally probate the Will.  Gillespie. Shields & Taylor will not only help you determine whether to informally or formally probate the decedent’s estate, but also guide you through the process.

In a formal probate proceeding, an initial hearing before a judge is scheduled, notice of the hearing is published, and all the heirs/beneficiaries and persons interested in the decedent’s estate are notified of the hearing. Anyone who opposes the Will or the appointment of the person seeking appointment as personal representative may object in writing before the initial hearing or orally at the hearing.  If no one objects, the court takes testimony from the person seeking to be appointed personal representative and usually not only admits the Will to probate, but also appoints the personal representative. If anyone objects, then the probate matter becomes contested and litigation begins.

The personal representative is given “letters testamentary,” which authorizes the person to act on behalf of the estate without court involvement. The personal representative is required to follow Arizona law in administering and distributing the estate.

Unfortunately, many individuals die “intestate” or without a valid Will.  The probate process for intestate matters are substantially the same as outlined above, except that no Will exists, so no Will needs to be proved (validated). When no will exists, the Court uses Arizona law to choose and appoint a personal representative based upon priorities established by statute.  The court assures that estate assets are distributed according to statute rather than according to the decedent’s wishes. When an informal application is made, the registrar makes the appointment of a personal representative if she believes that everything is in order and that no judge/commissioner appears to be required. The registrar issues a statement of appointment that must be mailed to all heirs/beneficiaries shortly thereafter.  If the registrar is unable to appoint a personal representative for any reason, a petition must be filed for formal probate and all the procedures required in a formal probate proceeding as explained above.

Whether an individual is appointed a personal representative of an estate informally or formally, he or she is issued letters testamentary (sometimes called letters of personal representative), which authorize the personal representative to act on behalf of the estate and its heirs.  The personal representative becomes a fiduciary with duties that require the following of not only the terms of the Will, if a Will exists, but also Arizona law.  Gillespie, Shields & Taylor diligently and effectively work with you to administer the estate efficiently, effectively, and attempt to mitigate or eliminate your exposure to personal liability.