Articles Tagged with Personal Representative

Probate terminology can be confusing. Even Phoenix Probate lawyers sometimes misuse and confuse probate terms.   But you need to know the language if you are to understand what is going on. So here are some common terms used in estate proceedings along with definitions.   More definitions can be found in A.R.S. §14-1201.

Application is a written request directed to the probate registrar for an order of informal probate or appointment.

Petition is a written request to the Court for an Order after notice to interested parties.

What is an ancillary probate? When a person dies, their state of residence has jurisdiction over their estate. This is the state where a probate is usually filed. The state of residence is also normally where the decedent’s property is located.   However, sometimes a decedent owned property in another state. When this happens, an ancillary probate is often needed to handle the out of state property. It is a probate proceeding that is ancillary to and designed to assist the main probate.   Ancillary probates are common in Arizona because thousands of our winter visitors have purchased homes here but continue to reside in their home states.   Similarly, many of our Clients probating an estate here in Arizona often need our help to locate and hire an out of state attorney to transfer property the decedent owned in that state.   Obviously, probating an estate in two or more states adds additional cost and complexity to the handling an estate.

How can an ancillary probate be avoided? An ancillary probate can be avoided by using the same strategies employed to avoid any probate. Assets need to be held in such a way that they do not need to go through a probate. They become non-probate assets. Some of the common ways to accomplish this are:

  1. Use payable on death (POD) or transfer on death (TOD) accounts. If your financial institution accounts are set up this way, no probate is needed to transfer the accounts to the person or persons you have named as transferee.

Much has been written by estate planning attorneys as to how to avoid probate. It is true that drafting of estate planning documents with a goal of probate avoidance is of great value to families. But sometimes a probate is needed or can be useful. Here are a few of the benefits of the probate procedure:

  1. The most important benefit is that a probate provides a court supervised procedure. This encourages a timely and more formal administration of the estate. It also provides a framework within which a duly appointed personal representative can have subpoenas issued, investigate the assets and debts of the estate, recover assets, collect money owed to the estate, and challenge disputed claims.   ARS 14-3701 lists some of the duties of a personal representative.
  2. In administering a probate estate, a personal representative is held to the same fiduciary standard as a trustee including the duty to account. ARS 14-3703. This provides a measure of protection to the estate beneficiaries or heirs.

Probate is the judicial procedure by which a decedent’s estate is handled through the appointment of a Personal Representative (some states use the term “Executor”).   As mentioned in Platt & Westby’s webpage titled “Probate”, a probate is not always required to handle a decedent’s affairs. Many times, the decedent will not leave behind the kinds of property requiring a Probate, or perhaps the decedent utilized a Trust or other estate planning tool that make a Probate unnecessary. However, should you find yourself in the position where Probate is required, this article provides a rough outline for the standard Probate process. In certain cases, summary Probate proceedings are available which are not addressed by this article.

The first step in the Probate process is to determine if there is a Will or not. You will need to gain access to the decedent’s important papers to determine if there is a Will or perhaps the decedent made known to you a copy of his/her Will beforehand.   If for any reason you cannot gain access to the decedent’s important papers, you may have to proceed to file for appointment of a Special Administrator to obtain the permission necessary to search through the decedent’s important papers. The Special Administrator appointment is outside the scope of this article – but a competent Phoenix Probate Attorney can assist with this. See A.R.S. 14-3614 et seq.

After determining whether or not there is a Will, the next step will be to determine if you may proceed with a formal or informal Probate opening. Arizona permits informal or formal proceedings at each of the different stages of a Probate, depending on the needs of the Probate estate, making it a flexible system. Often, you can begin an estate informally. Where the estate is testate (with an original valid Will), you can proceed to file an Application to have the Will Probated. Where the estate is intestate (without a Will) you can also proceed with an informal Application if all the heirs are agreeable to will serve as the Personal Representative.