Top 3 Things to Know for Opening an Arizona Probate

Top 3 Things to Know for Opening an Arizona Probate

      After someone passes away in Arizona, there are 3 critical questions that a family needs to answer in order to open a probate.  This blog answers all three of them.

1. Did the Person Have a Will?

      The first question that needs to be answered is whether the person had a valid Will.  Sometimes the answer to this is easy, but sometimes it takes awhile to figure out whether there is a Will or not.  I usually recommend that the family do a thorough search of their loved one’s files and important papers to see if they can find it.  After it is found, they also need to determine with the help of a qualified attorney if the Will is valid.  Finally, I recommend that the family also try to find the original of the Will.  For many documents, a pdf copy is satisfactory, but for admitting a Will to probate, having the original Will can save both time and money (in terms of attorney’s fees) for the family.  If there is a Will, then the Will provides the “roadmap” for the estate and helps the family figure out who is in charge of the estate and who the beneficiaries are.  If there is no Will, then the Arizona statutes will determine the answers to these two questions.

2. Who is the Personal Representative of the Estate?

      In Arizona, the personal representative (referred to as an executor in other states) is the person in charge of administrating the estate.  As a result, after determining whether there is a Will or not, the next question is to determine who will be in charge of the estate.  Except for smaller estates which may be handled with a Small Estate Affidavit, the person named in the Will will need to file paperwork with the court to be appointed as the personal representative for the estate.  If the Will is drafted correctly, the person named as the personal representative will be set forth in the Will.  If it is not included in the Will or if there is no Will, then Arizona’s intestate statutes have a list of who has priority to serve as the personal representative of the estate.  In general, here is the list in order of priority:

1. The person with priority as determined by a probated Will, including a person nominated by a power conferred in a Will.
2. The decedent’s surviving spouse if the spouse is also a devisee.
3. Other devisees of the decedent (devisees are people who are named as beneficiaries of the Will).
4. The decedent’s surviving spouse.
5. Other heirs of the decedent (heirs are people who would be beneficiaries under Arizona’s intestate statutes).

Although there are other possible personal representatives under the Arizona statutes, the people included on the above list will generally be the ones to serve in this important role.

3. What is the Distribution Plan for the Estate?

      Finally, the last important question to answer is who is entitled to receive the distributions from the estate.  If there is a Will, the details of the distribution will be set forth in the Will.  If not, then the Arizona intestate statutes will govern the distribution.  In general, absent a Will or other governing instrument like a trust or a beneficiary designation, Arizona law provides as follows for the distribution:

1. Spouse and no issue (issue includes children, grandchildren, and any lineal descendants) of the decedent – Spouse takes all.
2. Spouse and issue, all of whom are also issue of the surviving spouse – Spouse takes all.
3. Spouse and issue, one or more of whom are not issue of the surviving spouse (even if one or more is also issue of surviving spouse) (e.g., issue of the decedent by prior marriage) –
   • Spouse takes one-half of the decedent’s separate property;
   • Issue takes decedent’s half of community property and one-half of the decedent’s separate property.
4. No spouse, but surviving issue – Issue take equally if they are of the same generation; otherwise, those of more remote generations take only by representation of a deceased parent.
5. No spouse or issue, but surviving parents or parent – Parents take equally or if only one survives, the surviving parent takes all.

       If there are no spouse, issue, or parents alive, then other family members will take according to the provisions of the Arizona intestate statutes; provided that, if there are no living issue of the decedent’s parents or grandparents, then the estate escheats to the State of Arizona.  Although this does happen on rare occurrences, it does not happen very often as there is usually at least one heir that is living at that time.

      After these three questions have been answered, then, as the personal representative, you can open the probate case and begin administering the estate.  I will address the administration of the estate in a separate blog.  Depending on the terms of the Will and the family dynamics, there are different strategies for getting appointed as the personal representative by the Arizona court, so I recommend having a qualified attorney to help you work through this process.

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