How to File for Probate if Heirs Live in New Mexico & Decedent Lived in Arizona

by Teo Spengler
A formal will does not generally avoid probate.

A formal will does not generally avoid probate.

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Whether a person dies with or without a will in Arizona, an estate usually must pass through probate before transfer to heirs. Probate is a court-supervised administration of the estate. Probate of an estate in Arizona begins when the court issues letters to an individual giving him authority to serve as "personal representative" of the deceased and administer the estate. You file for probate in Arizona by petitioning to serve as personal representative.

Arizona Probate Jurisdiction

Arizona superior court has jurisdiction over the estates of decedents who live in Arizona at the time of death, regardless of where the heirs live. The court has authority to take all actions and make all determinations necessary to administer the estates, including resolving issues about heirs, whether or not they reside in Arizona. The fact that the heirs live in New Mexico does not give the New Mexico courts jurisdiction.

Opening Probate

Whether or not the decedent left a will, you open probate by a filing a petition to be appointed as personal representative. A personal representative -- termed "executor" and "administrator" in other states -- administers the estate; he locates assets and heirs, pays debts and files estate taxes. In Arizona, you must be at least 18 years old to hold this post, and must file a petition within two years after death.

People Eligible to Serve

If the decedent died without a will, the only people who can petition to be appointed personal representative are the closest family members: the surviving spouse, an adult child, a parent, or a sibling of the decedent. Where the decedent left a will, the person named personal representative in that will is also eligible to file a petition, as is every person taking property under the will. If 45 days have passed from the date of death and no petition has been filed, a creditor of the deceased can bring the petition.

Preparing the Application

You can obtain a packet containing all forms and instructions necessary to prepare an application to be appointed personal representative from the Arizona Superior Court's Self-Help Center on the Internet. Alternatively, you can get them from a reputable online legal-form provider. The forms must be completed in black ink. As part of the appointment application, you need to list the names, ages and addresses of all of the heirs of the deceased.

Priority for Appointment

The application requires you to list other people eligible to seek appointment as personal representative and their priority under Arizona law, which specifies who has priority among eligible applicants. If there is a will, the person named in the will to serve as personal representative has top priority, followed by a surviving spouse who also inherits under the will. Next priority goes to anyone else taking property under the will. If the decedent died without a will, the surviving spouse has top priority, followed by an adult child of the decedent.

Bond

Unless a will specifically waives bond, or if all heirs sign statements waiving bond, the personal representative must obtain a bond. In order to determine the amount of bond to set, the court requires an applicant for personal representative to estimate the estate's value.

Filing

To begin administration of the estate, you must sign the application and have your signature notarized. Make enough copies of the completed probate forms for all interested parties. File the original documents, together with the original will, if any, in the probate department of the superior court of the county where the decedent resided. A filing fee is required. Ask the court to file-stamp the copies. Send a copy to each of the interested parties.