On this page, we answer the most common questions we receive about Arizona probate law.
What Is Arizona Probate?
Arizona probate is a legal proceeding in which the Arizona Superior Court recognizes and establishes the validity of the last will and testament of the decedent. The court also ensures the decedent’s assets and liabilities are handled in accordance with the will or according to Arizona law in the event there is no will.
Will My Estate Have to Go Through Probate If I Have a Will?
Yes; validating a will is the central principle of probate. However, a will is an important part of any estate planning strategy. Your will allows you to name the person you trust to administer your estate, distribute your assets, care for your children, and more.
What Is Probate Litigation?
If probate is the process of proving a will is valid, probate litigation is what can happen if legal questions or issues arise during that process. Common reasons for probate litigation include:
- An interested party decides to contest the will’s validity
- A dispute arises over who should serve as Administrator
- An interested party disputes the appointment of a trustee
- An interested party questions the amount charged by the personal representative (or administrator or executor)
- The surviving spouse claims his or her community property share (right to a portion of the estate)
- An interested party requests a formal accounting because they believe the administrator is not providing accurate information
What Makes a Will Valid?
Arizona has three criteria before it considers a will valid. First, it must be in writing, either hand-written or typed. Second, either the decedent or an individual directed by the decedent must have signed the will. Third, if the will is typed, it must be signed by two or more people who witnessed the decedent signing the will (or the decedent’s substitute).
Are Handwritten Wills Valid in Arizona?
Yes, a handwritten will is valid in Arizona. Known as a holographic will, the entire will should be written in the testator’s handwriting to remove all questions of validity.
Is Probate Always Necessary?
Not all assets are subject to probate. For example, certain financial accounts may have a beneficiary designation, such as 401(k) and life insurance policies. Assets titled in the name of a trust are not subject to probate. Arizona also exempts certain assets from the typical probate procedure depending on their value. This includes real property valued at $100,000 or less and personal property valued at $75,000 or less.
Are There Different Types of Probate?
Arizona recognizes three types of probate procedures: informal, formal, and supervised.
Informal probate is the least expensive and least time-consuming process. It occurs when an original will, or no will, is submitted to open the probate and no one contests either the will or the process.
Formal probate occurs when the court must determine the validity of a will or when a party contests who should be named as personal representative, how the probate is being administered, or how assets will be distributed.
Supervised probate is essentially a combination of informal and formal, with a judge overseeing the proceedings and signing off on decisions such as asset distribution.
How Long Does Probate Take?
Arizona probate always takes at least six months to complete, as the decedent’s personal representative must notify creditors. The creditors then have four months to make their claims. Only after this period may probate be closed.
On average, informal probates typically takes eight to twelve months to complete, depending on the complexity of the estate. Formal and/or complex probates may take much longer–possibly years–if the case requires a trial.
What Is a Personal Representative?
Referred to as an executor in most states, the personal representative acts on behalf of the estate. He or she gathers assets, distributes property as directed, and pays creditors and any taxes owed to the IRS.
Arizona assigns the personal representative in the following order:
- The person named or nominated in the probated will
- The decedent’s surviving spouse if he or she is also a devisee (named in the will)
- Another devisee who is not a spouse
- The decedent’s surviving spouse
- Another heir of the decedent
- The Department of Veterans’ Services (assuming the decedent is a veteran, spouse of a veteran, or child of a veteran)
- A creditor (assuming 45 days have passed since the decedent’s death)
- The public fiduciary
Any of these entities may also initiate probate.
Arizona does not allow a personal representative who is:
- Younger than age 18
- Deemed unsuitable by the court
- A foreign corporation
Personal Representative Bond Requirement
Arizona requires the personal representative to attain a bond unless one of the following applies:
- The will includes a provision waiving the bond.
- All of the heirs or devisees, whichever is applicable, file a written waiver with the court. If there is a guardian or conservator, he or she may waive the bond on behalf of the ward or protected person (assuming the guardian or conservator is not the personal representative).
- The personal representative holds a banking permit, represents a national banking or savings and loan association, is a trust company certified by a financial institution, is a title insurance company, or is the public fiduciary.
- The probate petition asserts that the estate meets Arizona requirements of a small estate (R.S. 14-3973) AND the surviving spouse (or his or her nominee) is applying to be named personal representative.
What Are the Personal Representative’s Duties?
The personal representative must:
- Upon appointment: Notify creditors that the decedent has passed, via mail or public announcement in a newspaper
- Within 30 days of appointment: Notify heirs and devisees of the appointment of a personal representative
- Within 90 days of appointment: Prepare an inventory of the decedent’s property, including fair market value, and file this inventory with the court OR deliver a copy of the inventory to each heir (in an intestate estate) or devisee (if a will has been probated)
- Annually: Pay the decedent’s taxes on the estate; manage and preserve estate assets
If the personal representative becomes aware of property not listed in the original inventory, a supplementary inventory must be filed.
What Happens During a Probate?
Probate opens when a person or organization files an application with an Arizona Superior Court. This is a request to be appointed as the personal representative and for the court to accept the will for probate.
The prospective representative also files his or her acceptance, approved order, and statement of informal probate. If necessary, the representative also posts a bond.
The court appoints the personal representative according to the priority listed above. Typically, this does not require a formal hearing. If the court is satisfied with the documents filed, it issues the Letters Testamentary, which appoints the representative and opens probate. Notices are sent to heirs and relatives, which allow interested parties to contest the validity of the will.
The personal representative completes an inventory of the estate, informs creditors, and performs other estate management tasks. Once the creditors’ four-month window passes, the representative distributes assets to creditors and then beneficiaries. After the representative completes his or her duties, he or she files to close the probate. Court approval is necessary in a formal or supervised probate.
What Do “Testate” and “Intestate” Mean?
“Testate” means that a person died with a valid will in place. “Intestate” means that the person died without such a will. The “testator” is the person who made the will (sometimes referred to as “testatrix” if the person is female).
What Is the Difference Between an Heir and a Devisee?
If the decedent died intestate, an heir is the person who is entitled to the decedent’s property according to Arizona law. A devisee is named in the will to receive real or personal property (i.e. beneficiary).
Is a Will Signed in Another State Valid in Arizona?
The will is deemed valid if, at the time of signing, it complied with the law in the state where it was signed.
