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TIME MOVES FORWARD

Remembering a Key Probate Deadline After a Death Has Occurred

 

During the course of the estate planning portion of my legal practice, I have often observed individuals delaying implementation of an estate plan after a friend or relative has passed away.   It is understandable that as part of the grieving process a person may want to take some time to morn, prepare emotionally for the process, and to organize the needed documents.   However, one cannot delay the process indefinitely.   Significant delay not only can complicate the legal process, but can potentially place those assigned to areas of responsibility into legal jeopardy as well.   In this article, I will discuss two areas where I have often observed a delay causing issues.

One area where I often observe a time issue occurring is in the filing of Probate.   For most low-value estates, or when there is a Will in place where one spouse has passed away and the surviving spouse remains, the need for a formal Probate is unnecessary.   Instead, in Arizona, only Informal Probate is required.   As the name implies, Informal Probate is a simpler probate process, which primarily involves the submittal of the proper pre-printed paperwork to the Court with no need for a hearing or more formal legal proceedings.   Oftentimes, the surviving spouse, close relative, or designated personal representative in the Will can manage this process on his/her own without the need of any attorney representation or involvement.

However, there is a limit in the amount of time where Informal Probate can proceed.   In Arizona, Probate must be commenced within two years after a decedent’s death.  A.R.S. § 14-3108.   If the informal probate process does not occur during this two-year period, Informal Probate is not allowed and certain procedural steps must be complied with to allow formal Probate to occur.   When this delay happens, what was once a relatively simple and inexpensive process often accomplished without an attorney becomes a situation where attorney intervention is necessary and additional procedural steps are required in order to proceed.    Along with the initial intervention, additional pleadings, reporting requirements, hearings, and other statutory-mandates of formal Probate now apply.   What could have been an inexpensive Informal Probate process now involves potentially several additional thousands of dollars of fees, costs, and expenses.

When one is assigned responsibility in the estate plan, such as the designated Personal Representative, failure to timely file Probate may cause additional problems as well.   Beneficiaries of the estate may have issue with the unnecessary time, costs, fees, and expenses caused by the delay of the Personal Representative that has now negatively affected their financial share or, at a minimum, added time for that share to be distributed.   As a result, Personal Representatives may find themselves facing allegations of failure to perform their duties and improper management of the estate.

It is understandable that one may not be emotionally or procedurally prepared to immediately initiate the Probate process.   However, continuing to delay the inevitable will ultimately cause future problems and additional expenses.

© 2017 Matthew W. Harrison and Harrison Law, PLLC All Rights Reserved

This website and article have been prepared by Harrison Law, PLLC for informational purposes only and does not, and is not intended to, constitute legal or financial advice. The information is not provided in the course of an attorney-client relationship and is not intended to substitute for legal advice from an attorney licensed in your jurisdiction.