Probate is a legal proceeding in which a deceased person’s property is distributed to his or her heirs. As part of the process a personal representative is appointed to follow through with disposing of any assets owned by the deceased person. Probate can be either informal, meaning there is an original will available and there are not challenges to that will, or it can be formal. Although probates can definitely be complex, even in handling an informal, uncontested probate, it is still a smart idea to hire a lawyer.
Probate starts by filing a petition with the court. The petition is filed on behalf of the person nominated to be appointed personal representative in the deceased persons will. If nobody is named, or there is no will, or everybody named is unable or not qualified to serve, the personal representative is chosen pursuant to statute. The court will then determine the validity of the will and issue letters. The personal representative must notify all the people taking under the will and must also notify all the creditors (this is discussed in more detail below). After the letters are issued and the notices are given, the personal representative must collect all the assets, prepare an inventory, pay any claims and make distributions. After this is complete the personal representative can file paperwork with the court to close the estate.
There are several reasons it is a good idea to have a lawyer for a probate. One reason is that you may not even need to go to probate if the estate can be passed by affidavit. This was discussed in more detail in a previous blog “How do I probate a small estate”. However there are additional and perhaps more compelling reasons it is a good idea.
To begin with, Probate is a proceeding in the Superior Court. While an informal process may go smoothly, there are still many rules and requirements a non-lawyer is not familiar with. Failure to follow these processes can delay your probate or worse cause it to be dismissed. A knowledgeable attorney will be familiar with the process and will be able to navigate the Court smoothly so your probate is as easy as possible. This includes preparing and filing the correct paperwork.
Some of the paperwork needed includes giving the correct notice to the necessary parties. This is a critical step in the process. If a party is not given proper notice it can cause problems further on in a probate, even after the time for claims has expired. This step is often overlooked with many people who do their own probates.
Another important reason to have an attorney is that a personal representative can be held liable if they do not do their job appropriately. There is a long list of duties the personal representative owes to the estate and to the heirs. Without an attorney it is unlikely the personal representative would be aware of these, thus making it easy to have a misstep, even an unintentional one.
It is not a requirement in the state of Arizona to have an attorney do probate for you. However, as discussed above, it is probably a good idea. Although there are costs associated with doing a probate, these are ultimately paid by the estate. The burden of doing a probate yourself is quite high, having an experienced attorney navigate the courts for you will ease the burden tremendously. If you have questions about probate and decide you need help, call our office today and set up a free consultation with a knowledgeable attorney.