by Richard C. Keyt, Arizona probate attorney
If you are considering opening an Arizona probate, you must read this article and make sure the personal representative does not make any of these biggest probate mistakes:
1. Failure to Give Notice of the Probate to All People or Entitled to Notice. The personal representative fails to notify all people who are entitled to notice of the filing of the informal probate. The people who are entitled to notice of the informal probate are: (i) any person who demands notice pursuant to Arizona Revised Statutes Section 14-3204, and (ii) any person who has a prior or equal right to appointment as personal representative who has not signed a waiver of the right to be appointed PR and filed with the court. Section 14-3310. All sections referred to in this article are section in the Arizona Revised Statues.
2. Failure to Give Notices in the Manner Required by Arizona Probate Law. When the personal representative is required to give notice to a person or entity, the notice must comply with Arizona probate law. The notice must be given by: (i) mailing a copy thereof at least fourteen days before the time set for the hearing by certified, registered or ordinary first class mail addressed to the person being notified at the post office address given in his demand for notice, if any, or at his office or place of residence, if known, or (ii) delivering a copy thereof to the person being notified personally at least fourteen days before the time set for the hearing. If the personal representative is unaware of the address of the person entitled to get a notice, he/she can give notice by publication or get guidance from the probate court. See Section 14-1401.A.
3. Failure to Deliver Proof of Giving Notice to the Probate Court. After the personal representative gives a required notice the PR must give proof that he/she gave the notice at or before the hearing and filed it with the court. Section Section 14-1401.C.
4. Omitting One or More Statutory Requirements that Must be in the Application for Informal Probate. Section 14-3301.B contains a long list of information that must be included in every probate application. The personal representative should go over this statute line by line and make the probate Application contains all the required information.
5. Filing the probate in the wrong county. The probate must be filed in the county where the decedent had his or her domicile at the time of death or if the decedent was not domiciled in Arizona in any county where property of the decedent was located at the time of his or her death. Arizona Revised Statutes Section 14-3201.A.
6. Failure to Notify all Heirs of the Appointment of the Personal Representative of the Probate. Not later than thirty days after being appointed personal representative the PR must notify all the heirs and devisees in any will mentioned in the application for appointment of a personal representative. The information shall be delivered or sent by first class mail to each of the heirs and devisees whose address is reasonably available to the personal representative. Section 14-3705.
7. Failure to Get a Bond. The personal representative must obtain a bond unless: (i) the will expressly waives the bond, or (ii) all of the heirs if no will has been probated, or all of the devisees under a will which does not provide for waiver of the bond, file with the court a written waiver of the bond requirement. Section 14-3603.A. The general rule is that the amount of the bond is the sum of the value of the decedent’s personal property plus the value of his/her real property less encumbrances plus the estimated amount of income the estate will receive in its first year. Section 14-3604.A.
8. Failure to Publish a Notice to Creditors. The personal representative must publish a notice to creditors once a week for three successive weeks in a newspaper of general circulation in the county in which the probate was opened. The notice must announce the PR’s appointment and the personal representative’s address and notifying creditors of the estate to present their claims within four months after the date of the first publication of the notice or be forever barred. Section 14-3801.A.
9. Failure to Give Notice to Known Creditors. The personal representative must give written notice by mail or other delivery to all known creditors, notifying the creditors of the personal representative’s appointment. The notice shall also notify all known creditors to present the creditor’s claim within four months after the published notice, if notice is published in a newspaper, or within sixty days after the mailing or other delivery of the notice, whichever is later, or be forever barred. Section 14-3801.B.
10. Failure to Prepare an Inventory. Within 90 days of being appointed, the personal representative must prepare an inventory of property owned by the decedent at the time of his/her death, listing it with reasonable detail, and indicating as to each listed item, its fair market value as of the date of the decedent’s death, its nature as community or separate property and the type and amount of any encumbrance that may exist with reference to any item. See Section 14-3706 for what the PR must do with the inventory.
11. Failure to Distribute the Estate’s Assets to the Legal Heirs. If the decedent dies without a valid Will, the assets of the estate must be distributed by the personal representative to the people who are entitled to receive the assets under Arizona’s law of intestate succession. If the personal representative distributes assets to a person who is not a legal heir the personal representative is personally liable to repay the value of the asset to the estate for distribution to the rightful heir. See Arizona Revised Statutes Title 14, Chapter 2.
12. Failure to Get an Heir to Sign a Release When Distributing Assets. Although it is not required by Arizona probate law, I recommend that the personal representative require every heir to sign a document that releases the PR from all claims and liability arising from being the PR in exchange for receiving a distribution of assets. If the heir refuses, the PR is still required to distribute to the heir all of the assets to which the heir is entitled.
13. Failure to Pay All Debts of the Deceased Due to Excess Distributions to Heirs. The personal representative must insure that if the estate has sufficient assets, all of the decedent’s debts are paid in full or settled for less than one hundred cents on the dollar. If the PR distributes assets to heirs and fails to pay all the debts of the estate the PR will be personally liable to the unpaid creditors. Section 14-3712.
Warning: Don”t Become a Personal Representative of an Arizona Probate Estate Unless You are a Pay Attention to Detail Person
Probate is a superior court proceeding overseen by a judge who will demand that the personal representative comply with Arizona probate law. As you can see from the above list of mistakes there are a lot of ways the personal representative can incur liability. Yes, some people successfully complete do-it-yourself Arizona probates, but you should ask yourself if you really want the headaches and stress of learning Arizona probate law and not making any mistakes that could cost you money.
It is possible for you to do a do-it-yourself Arizona probate, but why would you? Do you want to spend the time necessary to research Arizona probate law and learn the duties of a personal representative? The personal representative must comply with all 131 statutes contained in Chapter 3 of the Title 14 of the Arizona Revised Statutes.
Do you want the liability that all personal representatives have to heirs for breaching the fiduciary duties Arizona probate law imposes on the personal representative? Do you know what the PR’s fiduciary duties are? Wouldn’t you rather have an experienced Arizona probate attorney who can advise you on how to comply with your duties as the personal representative?
Of course I am biased, but my recommendation is that you hire me, Richard C. Keyt, to dot the eyes and cross the tees. I know Arizona probate law and will keep you out of trouble. To hire me see my article called “How to Hire an Arizona Probate Attorney.” Our fee for a typical uncontested probate is $2,500 – $3,000. We require an initial deposit of $2,500 from the personal representative, but ultimately our fee is paid by the estate and the estate reimburses the personal representative for the initial deposit paid to us. Think of our fee as the price paid by the estate to give the personal representative the peace of mind knowing that the probate will be done right.
If you have questions about Arizona probate law call me, at 480-664-7472 or send an email to me at [email protected]. I don’t charge to answer questions on the phone.