Arizona Tardy Probate

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.