What is probate?
Your estate consists of everything you own including all of your money, real estate, and belongings. Your estate also includes your debts and unpaid taxes. After you die, someone needs to settle your affairs. This person will take your estate through probate, a court-supervised process that ties up your estate after your death. The proceedings take place in the state where you lived at the time of your death.
How does probate start?
If your estate is subject to probate a family member begins the process by filing an application for the probate of your will. The application is known as a petition. The petitioner brings it to the probate court along with your will. Usually, the petitioner will file an application for the appointment of an executor at the same time. The court first rules on the validity of the will. The court will then rule on the application for an executor.
What’s an executor?
The executor is the person you choose to handle the settlement of your estate. Usually, the executor is your attorney, spouse or other close family member. You’ll want to choose someone whom you trust will be able to carry out your wishes as stated in the will. The executor has a duty to be honest, impartial, and financially responsible.
Your executor’s duties may include:
- Finding and collecting your assets, including outstanding debts owed to you
- Inventorying and appraising your assets
- Giving notice to your creditors
- Filing an estate tax return and paying estate taxes
- Paying any debts
- Distributing your assets according to your will and the law
- Providing a detailed report to the court of how the estate was settled
What if you don’t name an executor?
If you don’t name an executor in your will, the court will appoint an administrator to settle your estate according to your will. In the instance you die without having a valid will, the court will appoint an administrator to settle your estate as well. This administrator will follow a special set of laws called intestacy laws that are made for such situations.
Is all of your property subject to probate?
Although most assets in your estate may pass through the probate process, other assets may not. It often depends on the type of asset or how an asset is titled. For example, many married couples own their residence jointly with rights of survivorship. Property owned in this manner bypasses probate entirely and passes by “operation of law.” At death, the property passes directly to the joint owner regardless of the terms of the will and without going through probate. Other assets that may bypass probate include:
- Investments and bank accounts set up to pass automatically to a named person at death
- Life insurance policies with a named beneficiary
- Retirement plans with a named beneficiary
How long is probate?
The process is long, possibly years, but our experience at Van Camp and Leonard can help. Accurate paperwork and our professional knowledge of the system can speed things up in the Arizona courts. Usually, four to six weeks after the petition is filed with the court, the court holds its first hearing to determine who shall be named as executor or administrator of the estate.