Featured in Image: Elizabeth Estes, Partner & Managing Estate Planning and Probate Attorney; David Michael Cantor, Founding Partner; and Nicholas Boca, Partner & Managing Family Law Attorney

Probate Defined

Probate is the legal process that typically occurs after someone passes away, whether or not they had a Last Will and Testament (LWT) in place.

When there is an LWT, the document names an Executor or Personal Representative who is authorized to transfer the decedent’s assets—first to pay creditors, then to distribute the remaining assets to the beneficiaries specified in the will.

If there is no LWT, the person is considered to have died intestate (without a will). In that case, an Administrator is appointed, and assets are distributed to beneficiaries according to a statutory hierarchy known as intestate succession under Arizona law. If no relatives step forward to serve as administrator, a creditor can initiate probate and be appointed to that role.

Four Key Instructions in a Proper Last Will and Testament

A well-prepared LWT should include:

1. Designation of Executor or Personal Representative
   This individual is tasked with paying all creditors and final expenses, filing the final tax return, and properly distributing assets.
2. Personal Property Disposition List (PPDL)
   This list directs who receives specific personal items such as family heirlooms, jewelry, watches, artwork, antique furniture, or similar belongings.
3. Alternate Guardian for Minor Children
   The will should name a backup guardian in case the primary guardian becomes unable or unwilling to serve.
4. Waiver of Bond Requirement
   A well-drafted will often waives the requirement for the executor or personal representative to post a bond, reflecting the trust placed in the chosen person.

Five Types of Probate

1. Small Estate Probate Process.

A simplified probate process is available in Arizona for Small Estates when certain value limits are met. This applies if the decedent’s real property—whether land or a home—is worth less than $100,000, personal property totals no more than $75,000, and unpaid wages do not exceed $5,000. Even with these thresholds, the process requires filing the correct Small Estate Affidavits for each type of property. For instance, if vehicles or trailers are involved, an MVD Affidavit must be submitted to the Arizona Department of Transportation to transfer ownership. It is essential to complete all affidavits accurately and follow every Summary Administration Procedure; otherwise, the estate could still be pushed into a more complex and time-consuming probate process.

2. Informal Probate Process

The Informal Probate Process is the most frequently used form of probate in Arizona. It is available when the terms of the Last Will and Testament (LWT) permit the probate court registrar to appoint an executor or personal representative—typically the individual named in the will. For the process to proceed informally, all heirs must agree on the choice of executor or personal representative, and there must be no disputes about the validity of the will or concerns over the executor’s performance.

One of the main advantages of informal probate is that it requires only minimal court supervision and tends to be less expensive than other probate methods. However, it still involves substantial paperwork and strict procedural requirements. For this reason, it is wise to work with an attorney who can prepare the necessary documents and ensure the process is completed properly.

3. Formal Probate Process

The Formal Probate Process is typically required when the Last Will and Testament (LWT) cannot be located or when a challenge is raised due to an irregularity—something more common in older or outdated wills. Challenges may also arise when minors are named as heirs or when a formal objection is made to the person designated as executor or personal representative.

Because formal probate involves additional court hearings and closer judicial oversight, it generally takes more time and incurs higher costs than the informal process. Once the court resolves all disputes and issues, however, the executor or personal representative can proceed to finalize the estate without further supervision.

4. Supervised Probate Process

The Supervised Probate Process is required when it is specifically directed in the Last Will and Testament (LWT) or when the court determines that ongoing oversight is necessary to protect the interests of a creditor, an heir, or another legally interested party. It is also the process used when an estate is deemed insolvent.

In supervised probate, the court monitors every action taken by the executor or personal representative for the duration of the administration. Given the high level of judicial involvement and the potential complexities involved, it is strongly recommended to work with an attorney when navigating this type of probate.

5. Contested Probate

Contested Probate, often called estate or probate litigation, arises when disputes develop over the administration of an estate or the validity of a will. These cases always require the assistance of an attorney due to their complexity and the high stakes involved.

Common reasons for contested probate include disagreements over the will itself, such as challenges to its validity, outdated provisions, missing documents, or the existence of multiple conflicting wills. Disputes may also stem from issues involving divorced spouses and insurance benefits, allegations of the decedent’s incapacity or undue influence, difficulty locating certain assets, abandonment of duties by the executor or personal representative, or claims of mismanagement and mistakes during the probate process.