Probate is a court process overseeing the administration of a decedent’s estate and can occur when a person has a will, or when someone dies without a will.
A decedent who leaves no will has an intestate estate. In this event, it could be necessary to nominate an executor, the person responsible for administering the estate, and for determining who the rightful beneficiaries are.
When someone dies without a will, beneficiaries are determined by law, and will generally be the next of kin. However, what many don’t realize is that certain intestate property could be subject to distribution to the issue of a predeceased spouse. Moreover, as the executor can be any person legally able to serve, any competent adult could petition the court to serve as an executor, including persons whom the decedent would never have chosen to serve. Drafting a will, then, is critical if you wish to direct who is to benefit from your estate and who is to administer your estate.
A probate can also occur with a properly drafted will. While the will nominates the executor of the estate, this individual derives their powers through appointment by the court. This occurs when the nominated executor petitions the court for letters testamentary. These letters are the court order naming the executor, and empowering this individual to accomplish one of the most important functions of the probate: marshaling a decedent’s assets and ensuring that assets are distributed to the decedent’s named beneficiaries.
Losing a loved one is an extremely difficult and emotional time, which is why it’s important to consult with experienced Arizona probate lawyers. Attorneys help take the emotion out of the equation and ensure that the proper steps are taken.
Who Serves as Executor of a Will?
Letters testamentary are issued by the court, naming an executor and identifying the powers the executor will have in administering the estate. These powers can be expansive, permitting the executor to conduct many responsibilities independent of the court, or they could be narrowly drawn, requiring court approval before many actions can be taken.
When considering who is best suited to serve as executor of a will, a person may consider a trusted friend or relative. In many cases, such an executor could be in the best position to know the family dynamics as well as understand the decedent’s intent, enabling the executor to faithfully administer the estate. And since it is often a good idea to choose an executor who is younger, since the executor will serve after a decedent’s death, many individuals will simply nominate one or more of their children to serve. Again, while the child may understand the testator’s intent as well as family circumstances, it may not always be prudent to name a child as executor.
- Siblings who do not get along, or who disagree as to the intent of a deceased parent, can cause unnecessary expense to an estate’s administration and can impair future relations amongst the siblings
- Choosing one sibling to serve as executor can lead to jealousy and bickering. Alternatively, choosing multiple siblings to serve together could lengthen the time necessary to administer an estate as well as the costs involved.
- While a family member may understand your wishes, and understand the family dynamics, the child may lack the experience, financial knowledge, and even more simply, just the time, to address the issues which may arise during probate cases.
- A relative serving as executor may have difficulty performing the necessary functions of that position due to stress and grief, as this process naturally occurs upon the death of a loved one.
Given the difficulties that friends or family members may encounter when serving as executors following a loved one’s death, an individual preparing a will should also consider alternatives, including professional fiduciaries. While a professional fiduciary must be paid, the experience of the fiduciary may make this a worthwhile investment in order to maximize the benefit to the beneficiaries of the will and maintain family harmony. Moreover, even a family member or friend serving as executor may be entitled to compensation, meaning the cost of employing a professional fiduciary is not necessarily greater.
How Are An Estate’s Bills Handled?
Before probate can close, the liabilities of the decedent and the estate must be addressed. The decedent’s liabilities can include, among other things, a mortgage or a loan, credit card debt, expenses of the last illness, and taxes.
At the inception of probate, an executor will publish the filing to allow creditors to file their claims with the estate. It is the responsibility of the executor to ensure that all known, legitimate debts of the decedent are paid to the extent possible. An executor can negotiate these debts with creditors. While the executor is not responsible for paying the decedent’s debts with the executor’s own assets, willfully failing to address known claims could potentially subject the executor to personal liability. Additionally, negligently administering a decedent’s estate could expose the estate to liability.
Is it Appropriate for an Executor to Partially Distribute Assets to a Beneficiary in Need Before the Probate Closes?
A decedent’s child is in need of funds to purchase a house, start a business, pay off a credit card, or has some other urgent need for funds and has asked you, as executor, to distribute part of his inheritance early. Can you accommodate this beneficiary?
The answer is maybe. First, however, you should discuss the situation with your probate attorney to determine the necessity for a court order. While this is a common situation, the advantage of probate is to minimize the potential liability of an executor who might otherwise improperly administer an estate. The practice of when in doubt, asking the court, can provide the executor with judicial oversight to ensure that the administration of the estate is within the law and per the terms of the will.
Family Members in Town for the Funeral Have Asked to Borrow the Decedent’s Car and Stay at the Decedent’s House. Is This OK?
The funeral is an occasion when many friends and family members travel to the decedent’s town. Often, close family or friends may ask the executor to stay at the decedent’s house or borrow the decedent’s car in order to minimize the travel expense, and an executor may be tempted to accommodate these requests.
However, this probably is not a good idea. While the family may be well-meaning, and perhaps stretched financially by travel expense, opening a decedent’s house or car to others exposes the estate to potential liability. A car accident, a house fire, or other damage to the property cause expense to the estate. It is the duty of the executor to preserve and protect the assets so that they ultimately may be distributed to beneficiaries. Damage to these assets could represent a breach of the executor’s fiduciary duty and could expose the executor to personal liability.
How Does a Probate Close?
Once (1) all the assets have been identified, (2) expenses and taxes of the estate have been addressed, and (3) beneficiaries identified, the executor will submit a plan of distribution to the court.
This plan could include an accounting of the estate – a formal recitation of the assets at the beginning of the probate, the expenses paid, anticipated expenses to be paid, including executor fees, and any income earned. The court will review this documentation, and if appropriate, order the distribution of the assets as stated. The executor is then charged with distributing assets and transferring title.
Consult with Expert Probate Lawyers in Arizona
Probate can be an efficient means of ensuring a decedent’s estate is distributed, but it can be complicated and fraught with liability for the inexperienced, and therefore, it is prudent to consult early with experienced counsel. Contact the Phoenix-based probate lawyers at Arizona Law Group today to ensure that the legalities don’t add more stress during this already difficult time. With 8 offices around Arizona; Phoenix, Scottsdale, Chandler, Peoria, and more, you can rest assured that the help of expert attorneys is always nearby. Serving Maricopa County, Pinal County, and all of Arizona.
Probate Litigation
The Phoenix lawyers at Arizona Law Group have nearly 100 years of combined experience with estate planning, probate litigation, and family law. No matter what life stage you are in, if you have questions about estate planning and related litigation, we are on your side. We may be the right allies for you especially if you are in the midst of probate.
Call Arizona Law Group to discuss your concerns. We have offices throughout Maricopa County and serve clients from throughout the state and have offices near you. We may also be your local representation if you reside outside of Arizona, but have estate planning or probate interests within the state.
What is Probate Litigation?
Probate litigation often involves a formal legal challenge to some provision of an estate plan. Other times, it may be related to the legitimacy of the entire estate plan. You may be looking into litigation as the result of:
- Wills, and Estate Plan Legality: Questions about how the estate plan was originally crafted
- Amendments: If the will or estate plan was ever amended, was it done so legally and appropriately?
- The legitimacy of the Personal Representative: If a guardian, conservator, or Personal Representative of an estate plan was named in accordance with legally binding requirements
- Distribution of Assets: If the will or estate plan left any room for ambiguity, inheritors may have standing to contest the will through probate litigation
- Undue Influence: Did someone manipulate the will, power of attorney, or estate plan for their own personal gain?
If probate litigation in Phoenix and Maricopa County is necessary, the lawyers at the Arizona Law Group are prepared to represent you and your best interests from start to finish of the process. In addition to our legal experience, we are also sensitive to the other challenges that may not be directly related to litigation.
Tensions Can Build During Probate Litigation
During probate litigation, emotional tensions may surface. Families who have recently lost a loved one may already be emotionally sensitive. But if arguments related to the will and estate plan of the deceased individual are called into question, this can add tension to an already fraught situation.
With compassionate, knowledgeable, and resourceful lawyers of the Arizona Law Group on your side, you can have peace of mind. Whether the estate plan in question includes vast wealth and a complex investment portfolio or the estate is quite modest, Arizona Law Group will focus our undivided attention on your case.
What Can You Expect From Our Probate Lawyers?
Our attention to detail and extensive experience with probate litigation will be immediately apparent when you contact us for a consultation. Because every case is unique, we will not impose a formula on your case. Instead, we will listen to your concerns. We will diligently analyze your circumstances. We will gather evidence and create a formidable defense of your best interests. As our client, you will receive consistent and clear communication.
Our lawyers know that legal disputes related to estate planning, inheritance, and distribution of assets can be complex and sensitive. This is why we believe in keeping lines of communication open. You may already be struggling with the emotional loss of a loved one. Your attorneys should not add to your stress by leaving you in the dark.
Call the Arizona Law Group now for the legal representation you deserve along with the transparent and clear communication that will offer you peace of mind.
Because no two situations are identical, our Phoenix lawyers will spend the time to answer all legal questions you may have. Attention to detail and patience are essential when addressing probate litigation. Whether you are trying to defend the will, or you are challenging its legitimacy, we have the experience you need on your side. We are prepared to represent you as the personal representative or trustee but we also have extensive experience on the other side of these types of cases.
Looking For An Experienced Probate Litigation Lawyer Near You?
From wherever you are in Maricopa County, we have a law office near you. But even if you have questions and you live elsewhere in Arizona or you live outside the state, we may be able to assist you. Contact us now (602-548-3400) for a candid analysis of your situation.
Phoenix Guardianship Law Firm
Arizona Law Group can assist you with issues of guardianship and has offices throughout the Valley of the Sun. A guardian is someone appointed by the Court to make decisions concerning the health and welfare of an incapacitated adult. Call us to get guidance and insight from an experienced Phoenix law firm near you. Because we have offices from Gilbert to Peoria and all points in between, we represent clients throughout Maricopa County and across all of Arizona.
No matter how complex your legal circumstances or how complicated your questions, we are more than prepared to help you with any of your questions about:
- Appointing a guardian for yourself in case you are ever incapacitated
- Becoming a guardian for your ill or incapacitated parent or other loved one
- Naming a conservator rather than, or in addition to, a guardian
To make your choices and to ensure your wishes are followed, call 602-548-3400 or complete this brief form, and we -will begin analyzing your needs immediately.
Jump To:
Guardianship Law Can Be Complex
If the incapacitated individual—has not identified a guardian or conservator beforehand, the legal requirements can be extremely complicated. If you think you or a loved one may be in this position at some point in time, taking the necessary legal steps now can save much stress and heartache later. You can also name a guardian for yourself or a loved one in your estate plan before you become incapacitated.
In some cases, identifying who would handle an incapacitated individual’s wishes is quite simple. In most cases, a surviving spouse of sound mind will take care of decisions for their loved one. If you’re already researching – the situation might be more complex than just making sure a spouse is appointed. Your surviving parent might not be equipped to make those weighty decisions at this time. By being prepared for any eventuality – you’re ensuring a more positive outcome.
The Arizona Law Group serves clients throughout Maricopa County and beyond with all of their estate plan and family law questions. Our attorneys have nearly a century of combined experience. Because we are so experienced and have vast resources, we can answer your questions with a variety of options tailored for your specific situation. Such cases often bridge the legal topics of family law and estate planning. These are the primary areas of law we practice at the Arizona Law Group.
Contesting a Guardian
In some circumstances, especially in states with a large percentage of elderly residents like Arizona, an adult may contest the decision to appoint a guardian for them. This can be an extremely emotional and complex situation but we are prepared. We bring sensitivity and emotional intelligence to every case we take. Our clients deserve dignity, patience, and understanding. Our clients are, first and foremost, people. We handle all cases with sensitivity and diligence. Contested cases are instances in which this approach is vital.
Whether your case is straight-forward and clear or you need a Phoenix guardianship law firm that can handle extremely complex circumstances, contact the Arizona Law Group.
No matter what your questions or concerns about guardianship in Phoenix are, we have answers. Whether you are in the midst of a situation that requires you to handle someone else’s wishes, or you are preparing for the possibility of needing a guardian for yourself or a loved one, call us now.
The time is now to consult with the Arizona Law Group to discuss your options and opportunities.
Power of Attorney in Arizona
What Is a Power of Attorney (POA) in Arizona?
By granting another person a power of attorney (POA) in Arizona, you are legally allowing that person to act on your behalf regarding legal, financial, and healthcare decisions. A power of attorney can be a very important aspect of a sound estate plan but should be carefully considered. Generally, power of attorney in Arizona involves these 4 types of legal considerations:
- General Durable Power of Attorney (Financial)
- Health Care and Mental Health Power of Attorney
- Special Power of Attorney
- Revocation of Power of Attorney
For legal guidance related to power of attorney in Arizona, call us at 602-548-3400 or email us.
People who reside throughout Arizona have trusted us with some of their most complex estate planning needs. Our attorneys know the law, but we also know that estate planning issues, including issues related to power of attorney, have emotional weight, as well.
While many of our clients have planned their estates well before the inevitable, many are facing end-of-life scenarios or other significant life events. We understand the law and we are meticulous, wise, and diligent attorneys. But we are also people. We know that our Phoenix-area legal clients deserve our compassion and our willingness to understand their particular needs.
Power of Attorney in Arizona Law Questions
Whether you are the principal granting legal, medical, or other power of attorney, or you are an agent or potential agent being granted power of attorney in Arizona, turn to the Arizona Law Group and have your power of attorney legal questions answered. Contact us if:
- You are considering granting power of attorney
- You have already granted power of attorney and have questions about revocation
- You have been granted power of attorney as an agent of the principal and have concerns about your rights and responsibilities
Our legal team is prepared to offer guidance and advice based on years of experience. We have counseled thousands of clients throughout Arizona and are prepared to assist you regardless of your circumstances.
Why Do I Need A Power of Attorney in Arizona?
If you become ill or incapacitated, you may need someone to make decisions for you. In some cases, you may need a Health Care and Mental Health Power of Attorney instead of or in addition to a financial power of attorney in Arizona. The facts of your case will determine the correct path for you but, generally, power of attorney in Arizona involves these types of legal considerations:
- General Durable Power of Attorney (Financial)
- Health Care and Mental Health Power of Attorney
- Special Power of Attorney
- Revocation of Power of Attorney
Your particular needs will dictate which, if any, of the aforementioned are necessary. But, in order for any of these to be legally binding, you should take action now. In the event of your incapacitation, you may need to have medical and health care decisions made for you, and someone to take care of your financial responsibilities. These may have a lasting impact on your future and, potentially, your estate plan. By discussing your circumstances with us, you can have peace of mind knowing you have the right legal arrangements in place.
- General Power of Attorney: As the title suggests, this is the most broadly defined type of power of attorney. This allows you to give another adult complete authority to act on your behalf in a variety of situations. These may be related to your personal finances, real estate, personal property, and your business dealings.
- Special Power of Attorney: This grants very restricted and limited power to another individual to act on your behalf. This may be related to a one-time-only transaction, for instance.
- Health Care and Mental Health Power of Attorney: This power of attorney allows your agent complete authority to make medical and mental health decisions if you are incapacitated.
- Revocation of Power of Attorney: If you want to cancel the power of attorney you have granted to another individual.
These definitions of powers of attorney in Arizona are only a small part of the complexities. The definitions are quite straightforward. However, the intricacies of your particular situation need to be carefully considered. The far-reaching impact of granting another individual such power should be discussed with experienced and attentive attorneys.
Contact Arizona Law Group for guidance and consultation regarding your Arizona power of attorney needs. We will offer a candid assessment of your situation to determine how you can best achieve the peace of mind you deserve.