Tardy Probate and Other Exceptions to the Two Year Requirement
A. R. S. § 14-3108 provides that in most cases a probate proceeding, whether formal or informal, “shall not be commenced more than two years after the decedent's death.” There are, however, four exceptions to this general rule.
The first three of these exceptions are fairly narrow. We will first mention these unusual exceptions, then we will discuss the fourth exception, tardy probate, which is very common.
The first exception to the two year requirement deals with the rare case in which a prior proceeding has been dismissed because of doubt about the fact of the decedent's death. In such a case, a proceeding can be filed “anytime thereafter” if it can be shown that the decedent did, in fact, die before the prior (dismissed) proceeding and it can be shown that the person bringing the case (applicant or petitioner) didn't “unduly” delay the subsequent proceeding. In this case, the date the case is filed is to be treated as the date of death for purposes of other provisions that relate to the date of death.
The second exception deals with the unusual case of a person who had been missing, absent or disappeared and for whom a conservator had been appointed. A probate proceeding for such a person can be filed within two years after the conservator is able to establish the death of that (protected) person. In this case as well, the date the case is filed is to be treated as the date of death for purposes of other provisions that relate to the date of death.
The third exception covers another uncommon situation. If a will has been informally probated, a proceeding to contest the probate of the will can be brought within the later of two years after the decedent's death and twelve months after the informal probate.
Tardy Probate
The fourth exception is the tardy probate exception. This exception allows a probate proceeding to be brought after the two years have passed if none was brought during the two years. There are two limitations to a probate proceeding brought under the tardy probate exception. First, the Personal Representative may only possess estate assets to the degree necessary “to confirm title thereto in the rightful successors to the estate.” Second, the only claims that can be presented against the estate are expenses of administration. Because there is no need to deal with creditor's claims, there is no need to publish notice to creditors or to wait for creditors to file claims against the estate. Consequently, the property can be transferred as soon as letters are issued and the probate can be closed as soon as the property has been transferred.
This “tardy probate” exception has proven very useful—particularly in cases in which the need for a probate is only made evident to the successors in interest years after the death when they are preparing to sell or transfer assets still held in the decedent's name. A common situation is when the estate property passes the surviving spouse, but no probate takes place to transfer estate assets to the spouse. Later, when the surviving spouse decides to sell the home, it is realized that this property is still held in the name of the decedent. Clear title to the home can often be obtained at this late date through the “tardy probate” process.
AvidLaw Probate easily identifies a tardy probate, asks the relevant questions, and prepares the applicable documents, saving you time and increasing profitability even if tardy probates are not common to your practice.
Friday, March 30, 2012
New Auto Update Feature
With our latest quarterly update, AvidLaw Probate now has an auto-update feature that greatly simplifies the process of keeping the template set up-to-date. After you install this latest quarterly update, future updates will happen almost automatically. When we upload an update to the Internet, your software will automatically sense that the update is available. Then, whenever you initiate the assembly of a template (whether an AvidLaw Probate template or not), you will be notified that there are updates available and be given instructions on how to find and install them.
One of the greatest benefits of this new feature is that it lets us update the software a little more often. We will continue to do one major update each quarter and we will continue to let you know, through this newsletter and email, when a quarterly update is available. In addition, if we make a small but very helpful change between quarterly updates, we now have a means to provide the change to every user before anyone assembles another AvidLaw Probate template.
As we mentioned, this feature is only available to you after you install the latest quarterly update in the traditional manner. If you haven’t already done so, please follow the instructions in the quarterly update email as soon as possible, so that the Auto Update feature will be available to you for all future updates.
Here is a link to a short video that demonstrates how the new auto update feature works. Please, let us know if you have any questions, concerns or comments. Thank you!
One of the greatest benefits of this new feature is that it lets us update the software a little more often. We will continue to do one major update each quarter and we will continue to let you know, through this newsletter and email, when a quarterly update is available. In addition, if we make a small but very helpful change between quarterly updates, we now have a means to provide the change to every user before anyone assembles another AvidLaw Probate template.
As we mentioned, this feature is only available to you after you install the latest quarterly update in the traditional manner. If you haven’t already done so, please follow the instructions in the quarterly update email as soon as possible, so that the Auto Update feature will be available to you for all future updates.
Here is a link to a short video that demonstrates how the new auto update feature works. Please, let us know if you have any questions, concerns or comments. Thank you!
The Finish Button
Some of you have reported inconsistent results relating to the Assemble
ALL Documents feature within AvidLaw Probate. In some cases, the documents are
not all being assembled when, at the End of Interview screen, you click on “Send
the assembled document to Microsoft Word and close this window.” For this
reason, we have changed our instructions for assembling all documents from the
End of Interview screen. In the future, please click on the Finish button
located in the lower right hand corner of the End of Interview screen in the
Assemble window. This button will consistently assemble the document or
documents associated with the interview. Also, be aware that this button is
available throughout the interview and, if selected, will begin the assembly of
the document or documents associated with that interview.
Also, because we no longer recommend that you use the “Send the
assembled document to Microsoft Word and close this window” button, we suggest
that you change your HotDocs Options to remove this button from the End of
Interview screen. To do this, open AvidLaw Probate and select the Tools tab and
then Options. Click on the plus sign next to the Interviews and Dialogs
folder to see the subfolders. Select the End of Interview subfolder and,
within it, unselect “Send the assembled text document to the word processor.”
While you’re here, we suggest that you also unselect “Close this window without
saving the assembled document.” This option simply performs the same function
as the red X in the upper right hand corner of the Assemble window.
If you need help with these steps or have any questions please let
us know.
New Referral Program
Now your friends and colleagues who are new to AvidLaw Probate can
use it on one matter for free. If they mention your name when they sign up, we’ll
also credit you with a free AvidLaw Probate matter of your own (or, if you have
an annual license, we’ll add two months onto your next annual subscription).
It’s a win-win opportunity!
We’ve learned that your good word is easily our most effective way
to get the word out about AvidLaw Probate. We have set up a way to make it
easier than ever for your friends to take AvidLaw Probate for a spin—with a
significant benefit both for them and for you. Just have your friend call me,
Garth Pedersen, at 480-361-1324, asking for our special offer and mentioning
your name. We’ll set them up with AvidLaw Probate and credit you for sending
them our way.
Thank you for your help. We look forward to sharing with your
colleagues all the benefits of AvidLaw Probate.
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