PROBATE

This is one of the areas of the law that can get very confusing and overwhelming - primarily because people often face it after losing a loved one. Probate is not good - and it is not bad - it just is what it is. It helps to understand how it fits into the world of estate planning if we:

  1. Understand what probate actually means;

  2. Understand what is in the probate estate; and

  3. Understand the difference between formal and informal probate.

First, Probate is a process governed by the local judicial authority to wrap up the final affairs of someone who has died. The word Probate comes from Latin roots and means “To Prove” - thus, the process is used to help “prove” and answer a few key questions: Who gets what? When do they get it? How do they get it? Here is a very basic example. Lets say Jack owns a home - his name is on the deed - then, sadly, Jack dies. Who gets the house? When do they get it? How do they get it? If the home was in a trust or had a beneficiary deed it is quite possible it is not a probatable asset and therefore would not need to go through the court process.

But lets say the house wasn’t in a trust and there was no beneficiary deed. Lets also assume Jack was the only person named on the deed. This home would then fall into Jack’s probatable estate. Generally, assets that do not have a beneficiary listed, or are not titled in the name of a trust, or that do not have certain types of joint ownership will end up in this pot of probatable assets. Thus, one of the key components of the probate process is identifying and gathering the assets that belong in the probate estate versus those that have passed via trust or beneficiary designation.

Last, it helps to understand some of the basic mechanics behind the probate process. One of the first things that will be determined is if the case can be expedited and move quickly (quickly = 6 months minimum) through the informal probate process or whether the formal process will be required. In Maricopa county, the Superior court lists three requirements in order for the case to be considered for the informal process (Click here to see the county website):

  1. An original will can be presented;

  2. The will is not being contested; and

  3. None of the heirs listed in the will are being contested.

If these criteria are not met, then the case will need to go the formal route and a judge or commissioner will then be involved in the affairs of the estate. If this is all overwhelming - and it generally is - perhaps it is time to seek the help of an attorney who can help you navigate through the waters of probate.