The Purpose of Probate
The legal process that typically follows the death of an individual is referred to as “probate” and is intended to serve several functions, including the authentication of a Last Will and Testament submitted on behalf of the decedent. If the Will is authenticated, the terms of that document will then be used to determine how the decedent’s estate assets are distributed. Anyone in possession of an original Will should give that Will to the Executor of the estate and/or submit it to the appropriate court to begin the probate process. Anyone who wishes to contest the validity of the Will should ideally do so prior to the Will being admitted for probate by the court.
The Process for Contesting a Will in Arizona
The legal process for contesting a Will in Arizona begins with some preliminary considerations that need to be addressed to ensure that a contestant is legally able to contest the Will. Specifically, a prospective contestant should ask the following questions:
- Do you have standing to contest the Will? In the State of Arizona, you must have “standing” to initiate a Will contest. Standing refers to the legal right to bring the legal action in question, in this case, a Will contest. To have standing, you must be an “interested person.” As a general rule, this includes beneficiaries under the Will submitted to the court, beneficiaries under a previous Will, legal heirs of the estate, and possibly a creditor.
- Has the time frame for contesting the Will already elapsed? Like most types of civil litigation, a Will contest has a time frame within which the litigation must be initiated or it is barred. Exactly what that time frame is, however, is complicated. If the Will was admitted to informal probate in Arizona, you typically have four months to object and force formal probate. If the Will was admitted to formal probate, you usually have up to two years. There are exceptions to those time frames, however, it is always best to initiate a Will contest as early in the probate process as possible.
- Do you have grounds for contesting the Will? Simply being unhappy with the inheritance left to you (or not left to you as the case may be) is insufficient cause to contest a Will. Instead, a contestant must allege (and ultimately prove in order to be successful) one of the following grounds upon which the Will could be declared invalid in Arizona:
- Lack of testamentary capacity
- Undue influence
- Fraudulent misrepresentation
- Improper formation and/or execution
Litigating a Will Contest
If you have decided that all the preliminary questions can be answered satisfactorily, the next step will be to initiate the Will contest by filing the appropriate documents with the court where the Will was submitted for probate. From that point on, the person appointed to be the Executor of the estate is responsible for defending the Will. The Will contest will proceed just like any other type of civil litigation with discovery and attempts to settle without the need for a trial. If the parties cannot reach a mutually agreeable settlement, the case will proceed to trial at which time the contestant must prove the grounds that were alleged in the original petition.
If the contestant is successful, the Will is declared invalid. At that time, the court would look for another valid Will to use to probate the estate. If none exists, the estate will be probated as an intestate estate using the Arizona laws of intestate succession to distribute estate assets. If the contestant is not successful, the Will is authenticated and the estate assets are distributed according to the terms of the Will.
Contact Our Tucson Estate Planning Attorneys
For more information, please join us for an upcoming FREE seminar. If you have additional questions or concerns about the process for contesting a Will in Arizona, contact the experienced Tucson estate planning attorneys at Morris Hall PLLC by calling 888-222-1328 to schedule your free consultation today.