Gray & Fassold, Trust and Probate Litigation Attorneys

Gray & Fassold, P.C.

Trust and Probate Litigation | Elder Law | Mediation

Alisa Gray and James Fassold are now
part of Tiffany & Bosco P.A. and have
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Trust and Probate Litigation

Frequently Asked Questions about Trust and Probate Litigation

What is probate? | Do I need a probate? | In what state should I open the probate? | What is a trust?
Can I challenge a will? | What is “intestacy”? | What is a fiduciary? | What is a guardianship proceeding?
What are the duties of a guardian? | What is a conservatorship proceeding? | What is a “fiduciary arrest warrant”?

What is probate?

Probate is the court-supervised administration of property that passes by a will or intestacy (i.e., where there is no will). Probate has three functions:

  • to make sure any will is valid;

  • to deal with creditors of the estate; and

  • to transfer the property to the right people.

Although probate administration involves some court involvement, Arizona has streamline the process for most estates. Most probates are relatively inexpensive and efficient.

In Arizona, the probate court (officially the Probate Division of the Superior Court) handles not just probate estates, but also trusts, guardianships, conservatorships, and elder law questions.

Do I need a probate?

It depends on how the property is supposed to be transferred. If all of the property is held in a trust, you may not need a probate proceeding. If the property passes through insurance policies, pay-on-death accounts, joint tenancy with right of survivorship, beneficiary designations, or beneficiary deeds, you may not need a probate. And if the value of the estate is very small, you may not need a probate.

Even if you’re convinced a probate is not necessary, you should speak with an experienced probate attorney to make sure. Most probates are simple and straightforward. But failing to open a probate where one is needed can lead to much more expense and frustration down the road.

In what state should I open the probate?

The short answer is: wherever the decedent was domiciled at the time of death. But that may not be obvious in all cases. What if the decedent was in the state only for medical care, and intended to return home? What if the decedent was planning a move to another state, and had already purchased a home there? And – as often occurs in Arizona – what if the decedent split time equally between Arizona and another state?

In a close case, where more than one state could be a person’s domicile, it is wise to compare the probate law of the two states to determine if one has more favorable terms.

Even if domicile is clearly in one state, you may have to open a second probate – known as an ancillary probate – in another state if the decedent owned land there. Arizona has a streamlined procedure, known as Proof of Authority, to transfer land owned here where the probate is open in another state. Other states are not so streamlined and may require that a full probate proceeding be opened in the other state.

What is a trust?

A trust is simply a special relationship to property. If I give money to my brother to take care of our mother, I’ve created a trust. As trustor, I transfer what I own to my brother, who is the trustee. He has a duty to use the money only for our mother, who is the beneficiary.

Usually, a trust is set up using a written trust agreement. Trusts are much more flexible than wills, especially for tax reduction and long-term financial planning. As a result, they are increasingly popular with people of even modest wealth.

If all of a person’s property is in a trust, it is very possible that a probate will not be needed. Nevertheless, the probate court still has a role to play, if needed, in the administration of trusts. It can settle disputes, interpret unclear language, and even arrange for mediation. Although “avoiding probate” is often given as a reason for creating a trust, it’s important to balance the cost of preparing the trust itself with the cost of a simple probate. Frequently, the “cure” costs more than the “disease.”

Can I challenge a will?

Yes, provided you have a valid reason. In Arizona you can challenge a will for:

  • lack of capacity (i.e., the person who executed the will lacked a sound mind);

  • undue influence (i.e., someone coerced, tricked or manipulated the person into doing the will);

  • mistake; or

  • fraud.

Challenging a will can be difficult and expensive. The standard for capacity is very low: a person may be able to execute a will even if they don’t have the ability to sign a contract, or if they have a guardian or conservator to care for them. Undue influence is also hard to prove, although the law now makes it easier in certain circumstances. You should speak with an experienced probate lawyer to determine whether you have enough evidence for a will contest.

What is ”intestacy”?

Intestacy simply means that a person died without a will. If everything passes through a non-probate transfer (trust, pay-on-death account, joint tenancy, beneficiary designation, etc.), the lack of a will has no effect on the distribution. But if there are assets in the probate estate, those assets pass by intestacy.

As with all states, Arizona has detailed statutes to provide for the transfer of intestate assets to a person’s heirs. In essence, the statutes are based on what most people would want to do with their assets – spouses, children, grandchildren take priority. But in families where the next of kin are more difficult to determine, intestacy may require an heir search and court proceedings to figure out the proper heirs.

What is a fiduciary?

A fiduciary is someone who accepts the responsibility for taking care of the needs or property of another person for that person“s benefit. The fiduciary serves in a role of trust; the person served by a fiduciary places trust in the fiduciary to manage his or her affairs solely for his or her benefit and not for the fiduciary“s benefit.

What is a guardianship proceeding?

A guardianship proceeding is one in which the court considers whether a person needs the assistance of a type of fiduciary known as a guardian to provide for various personal needs.

In order to establish a need for a guardianship, the petitioner must establish, by clear and convincing evidence, that:

  • the person is incapacitated;

  • the appointment is necessary to provide for the person“s demonstrated needs; and

  • the person“s needs cannot be met by a less restrictive means than the appointment of a guardian.

In a guardianship proceeding, the proposed ward’s family, such as spouse, children and siblings, must be notified.

A person who is ordered by the court to be in the care of a guardian is known as a “ward.”

The court may appoint a family member or a professional fiduciary, depending on the circumstances.

What are the duties of a guardian?

A guardian stands in loco parentis, a legal doctrine in which an individual assumes responsibilities for another individual.

The guardian is responsible for ensuring that the ward is placed “in the least restrictive environment” and that all of their personal needs, such as medications, treatment, placement and social issues, are attended to.

The guardian does not assume personal liability for the ward’s debts or assets. However, a guardian is held to the same standard as any other fiduciary and must always act in the best interest of the ward.

Under Arizona law, a guardian must file an Annual Report of Guardian which includes the Physicians Report. The guardian must also notify the court of any change of address for the guardian or the ward.

What is a conservatorship proceeding?

In Arizona, conservatorship proceeding is one in which the court determines whether the proposed protected person needs assistance in managing their affairs. A conservatorship proceeding is similar to that of a guardianship; however, there is no requirement that the proposed protective person be declared incapacitated.

The court must find that the protected person is in need of a type of fiduciary known as a conservator if they have property which is in need of protection and if there may be waste if a conservator is not appointed.

Generally speaking, a conservator must post bond for any amounts that they are managing. However, under certain circumstances, assets can be restricted in order to reduce the amount of bond and the related bond premium. In most situations, the conservator must file an Annual Accounting with the court.

What is a “fiduciary arrest warrant”?

Under Arizona law, a person who is serving in a fiduciary capacity to another, is subject to being arrested if they fail or refuse to appear in court at a specific time and location (A.R.S. § 14-5701). The judicial officer can order the fiduciary arrest warrant and the clerk issues the warrant. A peace officer, such as a policeman or sheriff deputy, can serve the warrant and arrest the named person. The warrant shall set forth a bond in a reasonable amount to guarantee the appearance at further hearings.