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Probate Library

| The Personal Representative's Job | Small Estates | Ancillary Probate | Probate Checklist | Probate Fees | Probate FAQ's | Glossary of Terms |

An Overview of Probate

Many people aren't sure what the term "probate" really means. They think of it only as some long, drawn-out and costly legal formality surrounding a deceased person's affairs. Technically, probate means "proving the will" through a probate court proceeding. A generation ago, virtually every estate had to be reviewed by a judge before it could pass to those who would inherit it. Today there are several ways to transfer property at death, some of which don't require formal court proceedings, so the term is now often used broadly to describe the entire process by which an estate is settled and distributed.

For example, a surviving spouse may now receive property outright from her deceased spouse without any probate proceedings at all. Joint tenancy property also escapes the need for formal probate, as does property left in a living (inter vivos) trust and property in a pay-on-death bank account (Totten trust). In Arizona, if an estate consists of property worth less than $50,000, it, too, can be transferred outside of formal probate. Fortunately, the paperwork necessary to actually transfer property to its new owners in the foregoing situations is neither time-consuming nor difficult. We discuss all of these procedures, as well as how to do a formal probate court proceeding in other sections.

There is one thing you should understand at the outset: The person who settles an estate usually doesn't have much choice as to which property transfer method to use. That is, whether you are required to use a formal probate or a simpler method to transfer property at death depends on how much (or little) planning the decedent (deceased person) did before death to avoid probate. This is discussed in detail as we go along.

Both formal probate and some of the other non-probate procedures involve filing papers at a court clerk's office, usually in the county where the decedent resided at the time of death. In larger counties, going to the main courthouse and other government offices in person can be an ordeal but won't be with our assistance.

An Overview of What Is Involved in Settling an Estate.

Generally, settling an estate is a continuing process which:

Determines what property is owned by the decedent;
Pays the decedent's debts and taxes, if any; and,
Distributes all property that is left to the appropriate beneficiaries.

When a person dies, he/she may own several categories of assets. Among these might be household belongings, bank and money market accounts, vehicles, mutual funds, stocks, business interests, and insurance policies, as well as real property. All property owned by the decedent at the time of her death, no matter what kind, is called her "estate."

To get this property out of the name of the decedent and into the names of the people who inherit it requires a legal bridge. There are several types of legal procedures or bridges to move different kinds of property to their new owners. Some of these are the equivalent of large suspension bridges that will carry a lot of property while others are of much less use and might be more analogous to a foot bridge. Lawyers often use the word "administrate" and call this process "administering an estate." In this section we refer to these procedures collectively as "settling an estate."

Most of the decedent's estate will be passed to the persons named in her will, or, if there is no will, to certain close relatives according to priorities established by state law (called "intestate succession"
A.R.S 14-2101 et seq). However, to repeat, no matter how property is held, it must cross an estate settlement bridge before those entitled to inherit may legally take possession. The formal probate process is but one of these bridges. Some of the other bridges involve community property transfers, clearing title to joint tenancy property, winding up living trusts, and settling very small estates which are exempt from probate.

An Overview o How Long Does It Take to Settle an Estate.

If a formal probate court procedure is required, it usually takes from seven to nine months, or longer depending on the size and complexity of the estate, to complete all the necessary steps. On the other hand, if the decedent planned his estate to avoid probate with a trust, or the estate is small, or everything goes to a surviving spouse, then the estate may be settled in a matter of weeks by using some easier nonprobate procedures.

For more, please review our FAQ's>>

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