What is probate?

Question

What is probate?

Accepted Answer

What probate is under Arizona law

Probate is the process by which a will is declared valid so it can take legal effect: to be effective to prove the transfer of any property or to nominate an executor, a will must be declared valid either by a statement of informal probate issued by the registrar or by an adjudication of probate by the court . Administration of the estate — the appointment of a personal representative with the power to act — begins when that person is appointed by court order or registrar's statement, qualifies, and is issued letters .

The two routes to probate

- *Informal probate:* Upon application, the registrar issues a written statement of informal probate once at least 120 hours have elapsed since the decedent's death, after making required findings such as that the application is complete, venue is proper, and an original, duly executed, apparently unrevoked will is in the registrar's possession . Informal probate is conclusive as to all persons until superseded by an order in a formal testacy proceeding .
- *Formal probate:* A formal testacy proceeding is litigation to determine whether a decedent left a valid will, commenced by an interested person filing a petition requesting that the court, after notice and hearing, enter an order probating the will . If the petition is unopposed, the court may order probate on the strength of the pleadings or hold a hearing and require proof . Any will found valid and unrevoked is formally probated .

Alternatives to probate for small estates

Arizona law provides affidavit procedures that let successors collect property *without* probate — these are alternatives to probate, not part of it :

- *Surviving spouse's wages:* An employer must pay the surviving spouse wages or compensation owed to the decedent, up to $5,000, on presentation of an affidavit stating that no application or petition for appointment of a personal representative is pending or granted (or that the representative has been discharged or more than one year has elapsed since a closing statement was filed) .
- *Personal property:* Thirty days after death, a successor may collect debts, tangible personal property, and instruments by affidavit if no personal representative is pending or appointed, the estate's personal property (less liens and encumbrances) does not exceed $200,000, the successor is entitled to the property, and funeral and last-illness expenses have been paid . This route also covers transferring securities and motor vehicle titles .
- *Real property:* Not sooner than six months after death, successors may file an affidavit of succession to real property if no personal representative is pending or appointed, the Arizona real property (less liens and encumbrances) does not exceed $300,000, funeral expenses, last-illness expenses, and all unsecured debts have been paid, the affiants are entitled to the property, no other person has a right to it, and no federal estate tax is due .

One narrow exception also exists: a duly executed, unrevoked will that was never probated may still be admitted as evidence of a devise if no court proceeding concerning the estate has occurred and the devisee possessed the property (or no one claimed it under the decedent's title during the testacy period) .