Wills and Probate: Answers to Frequently Asked Questions
In Arizona, the probate process has been simplified and does not have to cause major hardships for personal representatives or heirs.
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The laws of each state set the requirements for a will. In Arizona, you, the maker of the will (or testator), must be at least 18 years old. You must be of sound mind at the time you sign your will. Your will must be witnessed in the manner set by law.
It is necessary to follow exactly the formalities required for the execution of a will. To be effective, your will must be judged valid and allowed by the probate court.
Your will does not become effective until your death. You may change it by drawing a new will or by drawing a codicil, which is an amendment executed with the same formalities as a will. A will's terms cannot be changed by merely writing something in or crossing something out after the will is executed.
For How Long Is a Will Good?
It is valid and in force until you change or revoke it in the manner required by law. Your will may be changed as often as you desire provided you are competent and not under undue influence.
What Changes Can Affect My Will?
Changes in circumstances occurring after you execute your will may raise questions as to the adequacy of the will. These changes may include changes in the tax laws, a major change in the size or nature of your estate, moving to another state, the birth of a child, divorce, the death of your spouse, the death of an heir named in your will, or the death of your personal representative (known in many states as an "executor").
All changes require a careful analysis of all the provisions of a will and may make it advisable to change the will to conform to new situations.
What Happens When There Is No Will?
If you die intestate (i.e., without a will), inheritance laws determine who receives your property. When there is no will, the court appoints a personal representative to manage your estate, and there may be higher probate costs.
How Can I Change My Will?
You may change it by drawing a new will or by drawing a codicil, which is an amendment executed with the same formalities as a will. A will's terms cannot be changed by merely writing something in or crossing something out after the will is executed.
Does a Will Avoid Probate?
With or without a will, property that is in your name only (i.e., not owned jointly with one or more persons or not held in a trust) is subject to the probate process. Fortunately, that process has been simplified and does not generally cause major hardships for devisees and heirs.
A devisee is a person whom you have named in your will to receive property from your estate. An heir is a person who, if you had not made a will or if your will is invalid, would be entitled by law to property from your estate.
What Is Probate?
After your death, a court procedure known as probate occurs. The court will rule on the validity of your will; any claims against your estate will settled; probate-related costs will be paid; and your assets will be distributed to your devisees as instructed in your will.
Who Represents Me in Probating My Will?
In your will, you name a personal representative. His or her duty is to carry out, after your death, the instructions contained in your will.
Your personal representative, acting alone or through an attorney, submits your will, along with certain other documents, to the probate court, and asks that your will be admitted to probate.
If you name co-representatives, they must agree on all acts connected with the administration and distribution of your estate.
How Is Probate "Opened"?
Your personal representative opens a probate estate by filing an "Application for Probating of Will and for Appointment of Personal Representative." These documents are filed in the Superior Court of the county in which you lived. In many cases, this can be completed without the need for a court hearing. Once he or she is appointed, your personal representative can perform official acts on behalf of your estate.
What Are a Personal Representative's Duties?
Your personal representative may carry out your written instructions governing your funeral instructions. (See related article, "What Are the Duties of a Personal Representative?")
Your personal representative is responsible for administering your estate as directed by your will, subject to state law. His/Her duties include completing and filing your estate's income tax returns; notifying creditors; taking inventory of and appraising the assets of your estate; paying appropriate creditors, taxes and administrative expenses; and preparing a final accounting and distributing the balance of the estate to your devisees.
How Much Is a Personal Representative Paid?
Arizona law provides for reasonable compensation to be paid from your estate to your personal representative. As is the case with attorneys' fees, the reasonableness will depend on the amount of time spent, the nature of the assets, the cooperation of the devisees and heirs, and the value of the estate.
How Long Does Probate Last?
A probate can take from four months (the time allowed for notified creditors to submit claims against the estate) to, in rare cases, several years. This depends on the nature of the estate's assets and the time required to resolve claims. If creditors are not notified, they may make claims against the estate for up to three years after your death.
What Costs Are Associated with Probating an Estate?
The administrative cost of probate depends on the nature of assets in your estate, the number of your heirs and their willingness to cooperate, the value of your assets, and other variables.
Legal costs. Probate attorneys may charge an hourly rate, a flat fee, or a fee based on many factors, including the value of the estate's assets. In any case, the personal representative and the probate attorney should negotiate the billing method and rate to be applied.
Other administrative costs. Examples include fees paid to the personal representative, court costs, publication costs and miscellaneous copying and telephone charges.
What If My Personal Representative and Alternate PR Die Before I Do, and I Have Not Changed My Will?
If the personal representatives named in your will cannot assume their duties, those duties will be assumed by the following persons, in descending priority: (1) Your surviving spouse, provided he/she is a devisee, (2) other devisees, (3) your surviving spouse, whether or not a devisee, (4) other heirs, and (5) creditors.
What If the Assets of the Estate Don't Cover All of the Claims?
The personal representative will make payment in the following order:
Reasonable funeral expenses
Debts and taxes with preference under federal law
Reasonable and necessary medical and hospital bills
Debts and taxes with preference under state law
All other claims
For example, if there are sufficient assets to satisfy 100% of claims in categories 1 through 5 but only 25% of claims in category 6, all creditors in this group will receive 25% of their claims. In this situation, devisees and heirs may not receive anything of monetary value.
What If a Creditor Disputes My Personal Representative's Rejection of the Creditor's Claim?
A creditor who disagrees with the personal representative's disallowance of his claim may sue the estate in Superior Court. The probate will not be closed until the court rules on the lawsuit or until the personal representative and creditor have reached a settlement.
At What Point Does Probate End?
After the court has ruled your will valid and your personal representative has resolved all claims, the personal representative will pay all valid claims, pay all costs of administration, and distribute your assets to your devisees in accordance with the instructions in your will. The probate can then be closed, and your personal representative's appointment ends.
If you have a question on this topic that can be answered in a brief conversation, call us (480-985-4445) for a free 5-minute phone call with a Taylor Skinner attorney.