Common Probate Misconceptions
Probate is the court-supervised process of distributing someone’s assets after they pass. The process can be confusing, and most people know very little about it. Due to this fact, there are a lot of misconceptions about the probate process. In this article, we will clear up 7 of the most common probate misconceptions.
#1-A Will Helps You Avoid Probate
By far the most common estate planning and probate misconception is that your estate will avoid probate. This is not true. A Will is a probate document. It acts like instructions to distribute your estate according to your instructions, instead of the laws of intestacy.
#2- Without a Will, the Government Gets Your Money
The guidelines for how an intestate estate, or an estate where there was no will, is handled differently from state to state. But your assets will not automatically be taken over by the state or federal government. In Arizona, the state statutes outline intestate succession, or who has the right to inherit your assets when there was no will. In Arizona, the spouse has the first right, followed by parents, children, then siblings. To receive this share in your estate, they will need to file to be appointed as personal representative of your estate. The only time there may be an issue with the government inheriting your estate is if you have no surviving relatives.
#3- The Oldest Child or Sibling Has First Right to be PR
If you are dealing with an intestate estate and there are multiple people in the same class, they all have an equal right to appointment. For example, if there are three surviving siblings, they would all have an equal right to be appointed as personal representative. The oldest of the group does not hold priority over younger members. Due to this fact, everyone in the class must agree on who they want to serve as personal representative. Then they must sign a document renouncing their right to be personal representative and supporting their choice to serve. Some prefer to appoint joint personal representatives, which is an additional option.
#4-If You Have Had Multiple Marriages-Your Children or Spouse Will Not Receive Anything
If you have had multiple marriages and you die intestate, your estate will be treated differently. Instead of being distributed completely to one class of heirs, it will be split in half. The first half will go to your surviving spouse. Then the second half will be distributed equally to your children from previous relationships. This type of family situation can lead to a complicated probate. If you find yourself in this spot, it is often best to plan ahead with a Revocable Living Trust.
#5-The Process Takes Years
Every probate situation is different and some complex estate’s do take years to probate. But in the State of Arizona, the average time for completing probate is one year. The rules also set a minimum amount of time, so you cannot close sooner than four months after notice to unknown creditors has been published. Many people take longer than the four months because there is a lot to do. You must notify and pay any creditors, take care of taxes, and liquidate and distribute the estate. Some probates are forced to stay open for long periods of time due to pending lawsuits involving the deceased, but this is very uncommon.
#6-You Will Have to Meet with a Judge
Many people it is of concern that if they serve as personal representative they will have to go before a judge. This depends on the type of probate you are dealing with. In Arizona, there are two types of probates, formal and informal. An informal approval does not require any judge meetings, just the filing of paperwork with the clerk to keep the court updated on the status of your probate. Then there are formal probate proceedings. These do require hearings, but most often your attorney will take care of these and your involvement will be limited.
#7- It Is Necessary to Hire an Attorney
Whether or not you need to hire an attorney will depend on the complexity of your case and your personal preference. If you have a simple informal probate you can either use the court’s do-it-yourself forms or hire an Arizona Certified Legal Document Preparer to do this for you. If you have a more complex case situation or need to file formal probate, hiring an attorney is probably the best decision.
Clearing Up Common Probate Misconceptions
The goal in this article is to clear up common probate misconceptions. With this, we hope to get rid of some of the mystery around probate and make it a better-understood process.
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