Probate and guardianship faq

Probate is the process by which the court appoints a personal representative (executor) to settle the affairs of a deceased person and validates a will (if any). In Arizona, probate may be formal or informal, supervised or unsupervised. Informal, unsupervised probate is the most common. This means that the case is uncontested, there is a valid original will (or no will), and all parties have agreed on who should be appointed as the personal representative (executor). Informal probate requires that many documents be filed with the court, but usually there are no hearings. A formal probate occurs because a judicial officer (judge or commissioner) needs to make a ruling on a certain matter. The case may be contested, only a copy of a will is available, or several other reasons. Formal probate requires that the applicant appear in one or more hearings with a judicial officer. Formal probate may be unsupervised or closely supervised by the court, depending on the circumstances. We help many clients with informal probate documents. However, we do not prepare documents in formal cases.

From the time documents are filed with the court, assuming everything is in order, it generally takes anywhere from a few days to a few weeks to be appointed as the personal representative by the court (depending on county). From application to the final closing of the probate, will vary depending on this individual circumstances of the estate.

When the size of a deceased person's estate is under a certain amount, a "full" probate may not be required. A "small estate affidavit" may to used to prove to a financial institution or title company that the applicant is entitled to the assets held by that institution. When there is no real estate involved, this affidavit is called an Affidavit for Claim of Personal Property and is not filed with the court. When the deceased person owns real estate, it is called an Affidavit for Succession of Real Property which must be approved by the court. Both affidavits require that the total value of the deceased person's assets be under a certain dollar amount and that unsecured debts are resolved.

For many reasons, a person may lack the mental or physical capacity to make financial, medical or other life decisions. If an agent (power of attorney) has not be appointment by that person prior to their incapacity, the court may need to appoint a guardian and/or conservator. A guardian would make medical and other life decisions for the incapacitated person, much like a parent. A conservator would make financial decisions for the person and mange that person's assets. A conservator is often the same person as the guardian.

If the case is uncontested, usually the appointment takes 60-90 days. However, many factors can affect this timeframe.