When someone passes away, whatever they owned must sometimes go through a legal process known as probate. But who probates a will? Answering that question depends on your specific situation. That’s why t’s important to know the rules in order to ensure that the right person handles the deceased person’s estate.
Who Probates a Will?
Generally, the executor (also known as Personal Representative) named in the last will of the deceased person is entitled to probate a will. In Arizona, A.R.S. Section 14-3301 lists who probates a will informally (without a court hearing):
- The surviving spouse of the decedent.
- An adult child, a parent, a brother or a sister of the decedent.
- A person who is an heir of the decedent.
- A person nominated as a personal representative by a probated will or the will for which probate is asked or pursuant to a power conferred by the will.
- If the decedent was a nonresident, any person who is qualified under paragraphs 1 through 4 of this subsection or a personal representative appointed in the state of domicile or the nominee of such personal representative.
- If the decedent was a veteran, the department of veterans’ services.
- Forty-five days after the death of the decedent, any creditor.
- If no person is qualified and willing to serve as personal representative under paragraphs 1 through 7 of this subsection, the public fiduciary.
If the probate registrar is not satisfied that the will can be probated informally, he or she will transfer it to an assigned judge or commissioner for formal court proceedings. If you know in advance that a court hearing will be required, then any interested person can petition the court to probate a will. See A.R.S. Section 14-3401.
Ultimately, it is important to know who is authorized to probate a will in your state and ensure that the appropriate person handles your loved one’s estate.
What if person in possession of a deceased person’s will won’t file it with the probate court?
If a person is in possession of a deceased person’s will but fails to file it with the probate court, they may be committing a breach of their legal duties and responsibilities. In Arizona, A.R.S. Section 14-2516 provides:
A. After the death of a testator and on request of an interested person, a person having custody of a will of the testator shall deliver it with reasonable promptness to a person able to secure its probate or, if none is known, to an appropriate court.
B. A person who wilfully fails to deliver a will as required by this section is liable to any person aggrieved for any damages caused by this failure.
C. A person who wilfully refuses or fails to deliver a will after being ordered by the court in a proceeding brought for the purpose of compelling delivery is subject to penalty for contempt of court.
In most jurisdictions, the executor named in the will or an interested party, such as an heir or beneficiary, has the legal right to obtain and file the will with the probate court. If the person in possession of the will refuses to do so, they may be held liable for any damages that result from their failure to act, including any financial losses incurred by the beneficiaries.
If a person suspects that someone is in possession of a deceased person’s will but is refusing to file it with the probate court, they may need to seek legal assistance to compel the person to comply with their legal duties. This may involve filing a lawsuit or petition with the court to request the will’s production and appointment of an executor to manage the probate process.
What If You Can’t Find a Will?
At times there is no will or it cannot be located. In that case, you need to open an “intestate estate.” That simply means that there is a probate without a will. The court will appoint an executor of Personal Representative to handle the estate’s probate process. The executor is typically a close family member, such as a surviving spouse, adult child, or parent, but may also be a trusted friend or other relative.
In Arizona, A.R.S. Section 14-3203 (A) provides:
A. Whether the proceedings are formal or informal, persons who are not disqualified have priority for appointment in the following order:
1. The person with priority as determined by a probated will including a person nominated by a power conferred in a will.
2. The surviving spouse of the decedent who is a devisee of the decedent.
3. Other devisees of the decedent.
4. The surviving spouse of the decedent.
5. Other heirs of the decedent.
6. If the decedent was a veteran or the spouse or child of a veteran, the department of veterans’ services.
7. Forty-five days after the death of the decedent, any creditor, except a funeral director or funeral establishment owner who has control of the decedent’s remains.
8. The public fiduciary.
Responsibilities of the Estate Executor or Personal Representative.
Being an executor or personal representative of a will carries many responsibilities, including the distribution of assets according to the will’s instructions. This can be a complicated task, depending on the complexity of the estate and any issues that may arise during probate. The executor must ensure that all federal and state tax filings are complete and accurate, set up trusts as needed, pay any outstanding debts and bills, manage any investments or properties in the estate, identify and distribute assets to beneficiaries or creditors, prepare accountings for proceedings at probate court, keep detailed records throughout the processes of settling the deceased’s estate.
Let Us Help You.
We understand that navigating the complexities of probate can be overwhelming and emotionally draining. That’s why we are here to help guide you through every step of the process, from filing the necessary paperwork to managing the distribution of assets. Give us a call at 602-443-4888. We’re here to help.