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What is Probate?

Berk Law Group, P.C.

People sometimes ask, “What is probate? What does it mean to do a probate?” and although I think people generally understand that probate is something that typically happens after someone dies, a lot of people don’t understand the whole process. I’m Kent Berk, I’m an attorney at the Scottsdale, Arizona law firm of Berk Law Group, where we handle probate, estate, trust, and other types of matters in Arizona.

Let me explain the basic probate process. Although there’s a lot more involved in it, the basic process is this: once someone dies, a beneficiary or someone who’s nominated as personal representative, also called the “executor,” can file in court paperwork to have the personal representative appointed. Basically, the personal representative is a manager that takes control over the rights to manage and sell and disperse all of the person who died’s assets, and once the personal representative is appointed, the personal representative has to give notice to creditors, and notice to the heirs or next of kin. Among other things, the personal representative has the power to gather all the assets of the person who died, to pursue any claims that the person who died might have had, and then also has the obligation to identify and pay-off the rightful creditors of the estate. Once all the creditors have been paid, the personal representative is required to distribute whatever is left over in accordance with the terms of the will, or if the person died without a will, died in testate, then the personal representative would distribute the net proceeds of the estate, whatever is left over, to the heirs or next of kin.

One thing to keep in mind is that not all estates are actually subject to probate. There are assets that can pass outside of probate such as real property that is titled as “joint tenancy with right of survivorship” or bank accounts that have a co-owner listed, or a pay on death designation among others. Arizona also has small estate provisions whereby estates that fall under certain thresholds can be administered without actually opening probate.

If you have any probate questions, or an estate or trust dispute, please don’t hesitate to give us a call or contact us through our website. Thank you.