What Happens in Probate?

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

The Probate Process

When a person passes away, they leave behind the business of their life. They may involve mortgage payments, medical bills, or other responsibilities that don’t just disappear at the end of life. A personal representative will be appointed to represent the deceased individual and make sure all of the loose ends are tied and will be responsible for handling the process of probate when applicable. There are two types of probate, informal and formal, depending on the situation, however, the probate process for both will be as outlined below:

Paying and Negotiating with Creditors

After being appointed, the personal representative is required to publish notice to unknown creditors in a county publication and to provide actual written notice to all known creditors.  Once notice is provided, all creditors have four (4) months to make their claims against the estate or lose them.  For example, if the decedent owed $5,000.00 to his neighbor John and the personal representative, knowing of the debt, properly gives John notice of her appointment in January, but John does not make his claim for $5,000.00 to the personal representative until June, the debt to John disappears and the estate owes John, and John cannot enforce his right to receive payment from the estate.   Personal representatives have the right and authority to negotiate reductions in debts, and if successful, preserve more estate assets for distribution to beneficiaries.  If a creditor’s claim is not disallowed promptly after it is received, it becomes a valid claim that must be paid before the estate is closed, provided the estate has funds to pay such claim.

Itemize and Value all Estate Assets

Within ninety (90) days after appointment, the personal representative must produce to the court or to the beneficiaries an Inventory and Appraisement that itemizes and values all the estate assets.  The personal representative receives reimbursement for all costs advanced on behalf of the estate and can be reasonably compensated for all the work he/she performs on behalf of the estate, receipts of expenditures need to be kept as well as a log that details the work performed.  Any and all compensation received by the personal representative from the estate must be approved by the judge.

Accounting of Income & Disbursements

The personal representative is responsible to account for all income to the estate and all disbursements from the estate.  The detailed financial record is called an accounting and must be presented to the beneficiaries prior to making distributions, unless such accounting is waived by all beneficiaries.  Personal representatives can be personally liable if they commingle estate assets with personal assets, use estate funds for personal purchases, or if funds are mismanaged or missing.  Additionally, personal representatives can be removed as personal representative and/or sanctioned (fined) by the court for such activity.

Distributing the Estate

After assuring that all federal and state taxes due have been paid, all creditors have been paid, all disputes have been resolved, and all administrative costs have been paid, the administrator distributes the remaining estate assets according to the provisions in the will (if a will was probated) or according to the laws of intestacy (if no will was probated).  Each beneficiary receives a copy of the accounting as well as a proposed distribution statement.  Beneficiaries are free to challenge or object to the distribution or any act/omission of the personal representative in the administration of the estate.  Once all the beneficiaries agree to the final distribution, the remaining funds in the estate are distributed, the estate account closed, and the probate matter is closed.

How Long Should it Take?

Depending on the efficiency and complexity of the estate administration, a probate matter can take anywhere from four months to two years.  Since a creditor claim period of four months is required by statute, no estate being probated can be fully administered earlier than four months after the appointment of a personal representative.  Probate matters rarely take over one year to administer unless an issue within the matter is being litigated, then the matter may take two years or more.  No time limit exists, under the law, to complete probate; however, the personal representative is required to expeditiously administer the estate and if he/he takes too long, the court administration will order him/her to either file a status report outlining the steps needed to close the estate with deadlines or to file a closing statement.

Once a closing statement is filed, the case remains open on the inactive calendar for one year.  If no one files an objection or petition in the probate matter during that year period, the case is administratively closed at the end of the year.  A personal representative may obtain from the court an order to close the case sooner, at additional cost in attorney’s fees and costs, if he/she wishes.

A Team You Can Trust

An experienced Probate Attorney in Arizona can help you tie up the loose ends surrounding the death of a loved one.  Contact GillespieShields or call 602-870- 9700 anytime for probate and/or estate planning 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.

 

2 Comments

  1. Sheri

    What if it is out of the country? My daughter inherited an estate in New Zealand! What should she do? Thanks Sheri

    Reply
    • Annalee

      Wow! That sounds like an adventure! To answer your question, each state and country has its own laws that govern the handling and distribution of estates. Your daughter will need to contact an attorney in New Zealand for assistance because the laws of New Zealand will determine her rights and the procedure she must use to secure those rights or benefits.
      Thanks for your comment and good luck!

      Reply

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