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Are There Different Types of Probate?

After a loved one dies, the biggest question that the family has is: “Do we need to go through a probate?” This leads to the next question, which is: “Are there different types of probate?” In Arizona, there are essentially three different ways of administering an estate: (1) small estate affidavit for small estates; (2) “regular” probate (which is actually broken down into three different types of probate – (a) informal; (b) formal; and (c) supervised administration); and (3) ancillary probate for assets owned by the decedent in Arizona when there is a probate case opened in another state.

Small Estate Affidavits

Arizona does not have a separate probate proceeding for small estates. Instead, Arizona law allows the collection of small amounts of probate assets by affidavit without the need for any probate proceeding. There are three types of affidavits available: (a) collection of wages; (b) collection of personal property; and (c) collection of real property.

  • Collection of Wages. A surviving spouse (or agent for such spouse) may collect compensation for personal services due a decedent by affidavit. Collection is limited to wages not in excess of $5,000. This amount can be collected any time after death. The affidavit is given to the employer.
  • Collection of Personal Property. A person who is legally entitled to receive it may collect by affidavit a debt owed to the decedent or any tangible personal property or other assets (except for real property) belonging to the decedent in possession of another. The affidavit must state certain things (including that more than 30 days have elapsed since the decedent died) and must be delivered to the debtor or person having possession of the property. (Limit – $75,000).
  • Collection of Real Property. A person who is legally entitled to receive it may collect by affidavit the decedent’s interest in real property, or a debt secured by real property. The affidavit is filed in the court of the county of the decedent’s residence (or if a non-resident of Arizona, in the court of the county where the property is located). A certified copy of the affidavit without attachments is then obtained from the court registrar and is recorded in the county recorder of the county where the property is located. The affidavit must state certain things, including the fact that more than 6 months have elapsed since the decedent died as shown by a certified copy of the death certificate attached to the affidavit. Under A.R.S. §14-3972, persons are entitled to rely on the affidavits and are protected from liability in doing so. (Limit – $100,000 in equity).

“Regular” Probate

A “regular” probate is an estate that has probate assets that do not fit within the limitations of the small estate affidavit statutes. If your family’s member fits into this situation, then there are several different types of probate that you can open to administer the estate.

In general, the procedure is as follows: First, determine whether there is a Will. If a Will is found, then the probate proceeding consists of having the Will admitted to probate and appointing a personal representative (these are usually combined into a single proceeding).

If no Will is found, then the proceeding is one for the determination of heirs and the appointment of a personal representative. An heir is a person who would be entitled to receive a share of the deceased person’s estate as determined by Arizona law. The proceeding is brought in the county in which the decedent was domiciled at death. If the decedent was not domiciled in Arizona, then the proceeding is brought in any county in which the decedent’s property is located.

1)         Informal Probate and Appointment of Personal Representative. An informal probate proceeding is conducted by the Registrar of the Court without prior notice to interested persons. Notice is given to all heirs and devisees of the decedent within 30 days after appointment of the personal representative. Informal probate may not be filed prior to 120 hours following the decedent’s death. An application for informal probate in Arizona may be brought by the following individuals under the
Arizona statutes:

  • The surviving spouse of the decedent;
  • An adult child, a parent, a brother or a sister of the decedent;
  • A person who is an heir of the decedent;
  • A person nominated as personal representative by a probated Will or the Will for which probate is asked or pursuant to a power conferred by the Will;
  • If the decedent was a non-resident, any person qualified above, or a personal representative appointed in the state of domicile, or the nominee of the personal representative;
  • The Arizona Veterans Service Commission, if the decedent was a veteran;
  • Forty-five days after the death of the decedent, any creditor; or
  • If no one is qualified and willing under the paragraphs above, the public fiduciary.

Formal proceedings must be undertaken if a person with higher or equal priority has not renounced his right by appropriate writing filed with the court. The admission of a Will to informal probate is binding unless it is contested by an heir in a formal testacy proceeding commenced within four months from the date the heir receives notice of the informal probate. If notice is not appropriately given, then a contest must be commenced within twelve months from the date of the informal probate, or two years from the decedent’s death (whichever is later).

2)         Formal Probate and Appointment of Personal Representative. A formal probate proceeding will be needed if there is no informal probate available. It may also be used where there is doubt as to who the heirs of an estate are, if a Will contest is anticipated, or if supervised administration is desired. In a formal proceeding, a petition is filed and a hearing date is set, and notice is given to the appropriate heirs and devisees. In addition, notice must be published at least 14 days before the date set for the hearing.

3)         Supervised Administration. Supervised administration is a proceeding to secure the complete administration and settlement of the estate under the continuing supervision of the court. It is reserved for situations in which supervision is necessary for the protection of persons interested in the estate or under other circumstances determined by the court. Since the Arizona statutes do not define when supervised administration is “necessary”, courts have discretion in deciding the level of supervision for the estate. Petitions for supervised administration may be combined with formal testacy proceedings. If supervised administration is granted, sales of realty and other assets must be confirmed by the court and distribution cannot be made without prior court order. The court may set other restrictions as needed. Formal closing of the estate is also required, and annual accounts must be filed with the courts.

Ancillary Probate

Ancillary probate proceedings involve a personal representative of an estate handling assets of the decedent located in a second state. An Arizona decedent may own property located in another state, and because that state’s law governs estate matters arising in that state, the Arizona court has no jurisdiction over such property. An Arizona-appointed personal representative will normally be able to handle all estate matters arising or related to the State of Arizona. The family will need to hire local counsel in the second jurisdiction in order to accomplish the ancillary probate since local custom and/or local statutes must be followed. Issues relevant to the ancillary probate in the second jurisdiction include the procedure to be appointed personal representative in the second jurisdiction, whether the second state requires a supervised administration, whether state taxes are to be assessed, and the notice procedure under that state’s statute.

Seek the Help of an Experienced Probate Attorney

As you can see, there are several different ways to administer an estate after a loved one passes away. Choosing the right one can mean help you and your family work through the probate process quickly and efficiently. That is why I always recommend seeking the help of an experienced probate attorney in making these important decisions.

Need help? Please call me today – 602.277.7000

John Even

Our firm has helped hundreds of families just like yours handle a wide variety of estate planning, business planning, probate, and elder law issues. When families or business owners are not getting along, we can also handle any disputes and litigation related to their businesses, wills, trusts, guardianships, or conservatorships. Please give me a call, so that I can help you work through these difficult issues with confidence.

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