What is probate?
Probate is when the decedent’s estate is administered and processed through the legal system. It is also when the court determines the validity of the decedent’s will. If their will is declared valid, it can determine how and to whom the estate is divided during the probate process. If, however, the decedent did not have a valid will, or no will at all, the state will decide who will receive what. Following the passing of a loved one, it is imperative that you file a petition for administration as soon as possible. Probate is initiated when you file a “petition for probate”; when you petition for probate, you are asking the court to find the will valid and to appoint the individual nominated in the will as executor.
You can also petition for the appointment of an administrator when there is no will, or for the appointment of an administrator when no one was appointed executor, if the executor died, or if they resigned. You can also petition for a special administrator when emergency powers are required. When there is no will, usually a close relative (for example, the son or daughter of the deceased) is asked to be appointed as administrator. While an executor is nominated in a will, an administrator is appointed where there is no will; regardless, their duties are the same.
Understanding the Probate Process
If the decedent had a will, they most likely named an executor. The state only determines an executor for a will when a person dies without a will, when the decedent did not specify who they wanted to be their executor, or the person they chose cannot fulfill the executor duties. An executor must submit the original copy of the decedent’s will to the probate court in order to determine its validity. When the will is considered valid, the executor must fill out certain forms to notify the court, public, and interested parties of their death. Once these steps are completed, the decedent’s estate is open.
Inventorying the decedent’s property is the next step of the probate process. The point of this is to ensure that they left enough money to cover their debts, and to distribute certain properties and assets to beneficiaries. If the decedent’s estate does not cover what they owed to estate creditors and beneficiaries, it is subject to abatement statutes. This means that one or more of the beneficiaries may receive little or nothing at all. Inventorying property is to also ensure that the decedent’s property and assets are accounted for. This way, the executor knows that all property and assets listed in the decedent’s will are available for distribution once the probate process is completed.
The decedent’s executor is responsible for notifying the IRS of their appointment by sending in a form and applying for a taxpayer ID number for the estate. They must file for federal estate taxes and income tax returns. After the taxes are paid, the estate can be closed. A final total of the estate’s assets minus expenses must be tallied. This will determine how much will be distributed to beneficiaries. When the court approves the executor’s filings regarding assets, claims, taxes, etc., the assets can be distributed.
One of the main benefits of probate is that it is a court supervised process that closely monitors the actions of the executor or personal representative. This means that the court is on high alert for any unscrupulous or dishonorable activities that may be undertaken by the personal representative, and this is encouraging for beneficiaries.
Searching for an attorney for a Arizona probate case?
The Arizona estate planning lawyers at our firm are able to help clients who have lost a loved one and are now facing probate. Probate cases are often complex, and even the smallest mistake can prolong a case for months. Our firm knows what needs to be done in order to make the probate process go as smoothly and quickly as possible. If your loved one did not have a will, the process is slightly more complicated, and can take longer if you do not have legal assistance. Probate litigation can also slow a probate case. Contact an attorney from our firm today to see how we can help you!