The Processes of Informal & Formal Probate

The attorneys at GillespieShields practice family, employment, civil, criminal, probate, appellate, and immigration law.

Informal Probate

Informal probate begins when you present the court with either an application to probate a will and appoint a personal representative (i.e. executor) of the estate or, if no will exists, an application to determine intestacy and appoint a personal representative.

The Process

  • The application is filed with the court with a packet of documents that include an original will, if one exists.
  • Instead of the application being considered by a judge, it is reviewed by a Registrar.
  • If the Registrar finds that everything is in order, the personal representative named in the will, the personal representative nominated by the personal representative named in the will, or the individual with priority to serve under statutory law, is given authority to administer the estate.
  • The Registrar issues “letters of personal representative” or letters testamentary” to the personal representative, which enables such person to act on behalf of the estate.  With this authority, the personal representative can open bank accounts, transfer funds, obtain information on accounts, obtain information from creditors, negotiate debts, pay debts, place a house on the market for sale, sell a house, make distributions to beneficiaries, and ultimately close the estate.
  • The personal representative is considered a fiduciary (a trusted person) and owes duties to the estate beneficiaries.
  • The personal representative is required to promptly notify all interested parties that a probate matter has been opened and that he/she represents the estate.

Formal Probate

Formal probate begins with the filing of a Petition requesting the probate of a will and/or the appointment of a personal representative.  Formal probate is required under the following circumstances:

 

  1. A copy of the will is available, but not the original will;
  2. A question exists as to the validity of the Will;
  3. An individual nominated in a will to serve as personal representative is not available or does not wish to serve;
  4. A dispute exists as to who has priority to serve as personal representative;
  5. A dispute exists as to whether the person nominated as personal representative in the will or a person with priority to serve is capable of serving, can be trusted or reasons exist why another may be a better choice;
  6. Bonding is required;
  7. A dispute arises as to the validity of a Will;
  8. A dispute exists as to who are the rightful heirs;
  9. The will is unclear;
  10. Minors are involved and the minors need to have guardians appointed;
  11. An issue exists or is likely to exist during the administration that will require a ruling or order by a judge;
  12. The Registrar feels uncomfortable with anything in the petition.

The Process

  • Unlike informal probate, a Registrar does not review and consider the request, but rather a commissioner or judge.
  • The proposed or nominated personal representative must schedule a hearing and give all interested parties a copy of the petition and advanced notice of the date, time, and place of the hearing.
  • Notice of the hearing must also be published.
  • If any interested party, including beneficiaries or creditors, objects to the Will, the appointment of the nominated personal representative, or to anything else, the judicial officer will schedule a hearing at a later date where evidence is presented and upon which a decision will be made.
  • After the judge appoints a personal representative, the personal representative may need to post a bond and after proof of bonding may accept his/her appointment.
  • Upon acceptance, the personal representative will receive “letters of personal representative” or “letters testamentary” which authorizes the personal representative to administer the estate.

A Team You Can Trust

An experienced Probate Attorney in Arizona can help you know the appropriate actions to handle the complicated business that occurs when a loved one passes away.  Contact GillespieShields or call 602-870- 9700 anytime for probate assistance in the Phoenix and Mesa areas of Arizona.

Disclaimer

The information contained on this site is not, nor is it intended to be, legal advice. You should consult an attorney for legal advice concerning your individual situation. We welcome you to contact us via phone, electronic mail, or through this website. However, contacting us does not create an attorney-client relationship.  Please do not send us confidential information until such time as an attorney-client relationship is established.

 

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