What Happens in Probate Court?
What is Probate?
Probate is a legal process that verifies the distribution of a deceased person’s assets. The probate proceedings may feel overwhelming, especially in the midst of losing a loved one. It may seem unclear and confusing when trying to figure out what form of probate to petition. Then there is the question of what involvement the court will have in the process. It can get more confusing when trying to figure out what happens in a probate court when there is a will and what happens when there is no will. There isn’t always a clear answer. Do you have to have a probate court hearing? Do you even have to go to probate court at all?
However, we hope to provide some clarity and relieve some of the stress. Hopefully this guide can offer a better understanding of probate court procedures and how they impact real estate. Whether you are the executor of an estate or just curious about the process, this article will guide you through the probate court process.
Types of Probate
If a will is present, the probate process involves validating the will, paying off debts, and distributing remaining assets according to the will. If there is no will, the estate is settled according to Arizona laws, prioritizing the surviving spouse, children, and other family members.
Before going into details about the court proceedings of probate, let’s go over the types of probate. In Arizona, there are three types of probate:
- Informal: With informal probate, the named personal representative in the will may distribute property and assets of the estate with minimal court supervision. Informal probate is usually quicker since there is less court involvement. For informal probate to be approved, the will must be valid, as determined by the court, and uncontested.
- Formal: Formal probate occurs when the requirements of informal probate are not met. A judge is needed to resolve any disputes. In the absence of a will, the estate becomes “intestate.” Formal probate requires court-supervision with the judge hearing disputes and resolving legal issues. This probate process is more expensive and time-consuming with the lawyer fees, court filing fees, and hearings.
- Supervised: Supervised probate is the most expensive and lengthy, but also the least common. In this probate process, the court oversees the personal representative and their administrations of the distribution of assets. Supervising probate my be necessary when:
- The decedent requests it in their will
- The estate’s debts are higher than its assets
- There is legal action taken against the estate
- The court finds it necessary to protect the decedent’s estate
Filing for Probate
Before beginning the probate process, you may want to consult with a probate attorney to ensure you follow the Arizona laws correctly. You should be prepared no matter what happens in probate court. Regardless of which form of probate is needed, all types of probate will start with someone filing a petition to begin the process after a person dies.
In Arizona, probate must be filed in the county where the deceased person lived at the time of their death. The petition is filed with the Superior Court of the county. The type of petition depends on the circumstances.
- With a will and an executor: The executor files a Petition for Probate of Will and Letters Testamentary. A letter of testamentary, or letter of representation, is the legal document issued by the Arizona court to give a personal representative the authority to manage the estate. The personal representative will be filing to begin informal probate.
- With a will but no executor: A Petition for Probate of Wills and Letters of Administration with Will Annexed is filed. This happens if no executor was named, the executor is unable or unwilling to serve, or the executor already passed away.
- Without a will: A Petition for Letters of Administration is filed, and the court will appoint and administrator to serve in the probate process. Without a will, the Arizona intestate succession laws will determine how assets will be handled. Generally surviving immediate family members take precedence with inheritance and managing the estate.
Personal Representative Assigned
Once the petition has been filed with the court, the probate court will officially appoint an executor (if there is a will) or an administrator (if there is no will) to manage the estate. If there is no will or no executor named in a will, Arizona turns to priority for appointment for who to choose as the personal representative. First priority goes to the surviving spouse, and then to any surviving heirs. The personal administrator is granted “letters of administration,” an official document granting the right to manage the estate.
Personal Representative Responsibilities
After the administrator of estate is granted their powers, they will notify interested parties of the death (such as creditors and beneficiaries), take possession of the estate’s assets, and then create an inventory of assets.
They then pay out any creditors or taxes due of the deceased person. If it’s an informal probate process, they may then proceed with starting the process to sell the real estate. This may happen sooner in order to help with paying any debts. Once all estate liabilities are paid, the executor can distribute remaining assets.
Since the court granted permission to the executor to sell property, the executor may choose the method of selling. They may use a real estate agent, sell by owner, or find a company that buys probate houses. No bidding on the house would be involved since the court no longer interferes with the transaction.
Court Proceedings
If informal probate was granted, the court backs off and permits the personal representative to take the reigns in following the probate procedures. However, if informal probate or supervised probate are necessary, the court plays an integral role in the probate process.
What happens in probate court in formal probate is not always the same. The court may not be extremely involved but might require some probate court hearings. The judge may settle disputes over matters such as asset distribution, creditor issues, and the meaning of will provisions.
In supervised probate, the Arizona court oversees and administers all aspects of the process. They supervise the opening of the estate, approving attorneys, taking statements of creditors, appointing the personal representative, and the distribution of the assets.
Selling Property in Supervised Probate
When beginning to sell property of an estate, the court must approve aspects of the process. After the executor petitions to being probate and receives the approval, they must go through certain steps before selling any real estate properties.
Real Estate Appraisal
The executor must get the house appraised before listing it for sale. The appraiser must be a professional since the appraisal serves as the basis of the property’s asking price. Most probate courts require the property to be sold for at least 90% of the appraised value.
Petition to Begin the Sale and Listing
After receiving an appraisal of the property, the executor must file an intention to sell the house to the probate court. The document should include the appraisal value and the method chosen to sell the property, whether that be auction or market sale with a real estate agent.
The court grants permission to list the property for sale as a probate sale after conducing a hearing. Any interested buyers should be informed that the sale will only be completed after the court’s confirmation.
Once an offer is made on the property, another hearing is required to approve the sale. However before the hearing, the house can still be advertised, mentioning the buyer’s offer. Other potential buyers can still bid during the court hearing.
Court Hearing and Approval of Sale
If more potential buyers show up to bid on the house during the court hearing, the probate court takes charge of the bidding and overbidding.
After someone wins the bidding, the executor can petition the court to authorize the sale. The beneficiaries should also be notified of the sale and give their consent. If any heirs object, the sale may not be pushed through.
Once everything clears to move forward, the documents will be prepared for a probate court hearing. The court can then release an order to approve the sale.
Length of Probate
When there is a will, the probate process can go much quicker since the executor has full authority to carry out probate without court supervision. In this case of informal probate, the process could be completed within six to eight months. However, in the case of a large and complex estate, the process could take longer.
In the case of formal or supervised probate, the process could take one to three years. Again, this also depends on the size and complexity of the estate. Other factors could be disputes among beneficiaries or significant liabilities to settle within the estate. Formal or supervised probate also require court hearings and approvals, which also slow down the process significantly.
Conclusion
Ultimately, to make the probate process much faster, estate planning is essential. However, we understand that is not always feasible.
Image by Drazen Zigic on Freepik
That’s why we at Unbiased Options Real Estate are here for you. We have multiple professionals who specialize in the probate process. Not only do we have a Certified Probate Real Estate Specialist, but we have other services available for a smooth probate proceeding. We can help with real estate mediation, handle personal belongings within the estate, and even buy or sell your probate property for you.
Don’t let the probate court process add more stress during an already difficult time. Contact us today for a free consultation. We want to help you better understand what happens in probate court so you succeed in settling an estate.
*The information provided in this blog article is for general informational purposes only and should not be construed as legal advice. Unbiased Options Real Estate does not offer legal advice and encourages readers to consult with a qualified professional regarding their specific circumstances.
