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Does Probate Mean Going to Court?

When most people think of probate, they think of proving up a Will by going to Court, but they have no idea how that happens. Although different states have different statutes for dealing with probates in their state, in Arizona, there are essentially two different ways to administer a Will in probate, either formally or informally.

Two Ways to Open a Probate Case

In Arizona, you can open a probate case either formally or informally. Opening a probate formally requires filing a petition with the Court and having a hearing before a judge to make various decisions about the administration of the Will. Typically, a formal probate is required if there is an issue with the Will itself, one or more of the heirs need to be determined by the court or cannot be found, or the parties want the court to supervise the administration of the Will (perhaps because there is a pending dispute or potential dispute). On the other hand, under Arizona law, an informal probate is permitted to be opened by the probate clerk’s office when there is a valid, properly-drafted Will with none of the above issues or if there is no Will and all of the potential heirs have signed the necessary consents to appoint one of the family members as the Personal Representative.

Two Ways to Close a Probate Case

In addition, in Arizona, there are two different ways to close a probate case, either formally or informally. Closing a probate case formally requires a hearing before a judge, whereas closing a probate case informally can be done through the probate clerk’s office. If there are any issues with a particular transaction in the estate, the accounting in the estate, the proposed distribution, or the Personal Representative wants to be discharged more quickly, then a formal closing is a better option. Alternatively, in cases without these complications, you can close a probate case by filing a closing statement with the probate clerk’s office. However, just because you start a probate case formally does not mean that you can’t finish it informally if a formal closing is not needed.

Avoiding Probate Altogether is Still Best in Most Cases

Although there are two options for probating a Will in Arizona, this does not mean that going through the probate process is recommended if you can avoid it. In general, it makes sense to try to avoid probate because (1) probate is generally a much more public process than a trust administration due to court filings which are public record; (2) probate generally takes longer to administer than trusts if there are no estate tax issues; and (3) probate is generally more expensive to administer as a result. In my previous blogs, I have discussed different ways to avoid a probate, but the best way to do so is generally by creating a revocable living trust and then titling your assets in the trust properly.

If you need help with any probate matter, 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, probate, business planning, 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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