Executor/Personal Representative Information 

ALSO, I'VE BEEN APPOINTED AS A PERSONAL REPRESENTATIVE. NOW WHAT?

Who is a Personal Representative? The function of the initial documents filed with the Court is to appoint a Personal Representative (also known as an Executor). The Personal Representative has the lawful authority to act on behalf of the estate, to pay lawful debts and taxes of the estate, and to carry out the intent of the decedent in distributing the estate. The Personal Representative has authority to settle claims and administer the estate as necessary and appropriate, and plays an important role in harmonizing and unifying the family during this time of transition.

Must the Personal Representative Post a Bond? A bond is required for the Personal Representative in all probates unless (1) the Decedent states in a will that no bond is required, or (2) the heirs and devisees waive bond. If a bond is otherwise required, our firm normally asks all of the heirs and devisees to sign a waiver of bond. Getting the waivers signed and returned to us quickly speeds up the probate process and reduces the ultimate cost to the family.

If a Bond is Required, How Much is the Bond? If a bond is required and the Will does not specify the amount, the general rule is that the bond must be for an amount equal to the sum of: (i) the value of the decedent's personal estate plus (ii) the value of the decedent's real estate less encumbrances thereon, plus (iii) all income expected from the personal and real estate during the next year. The amount of the bond may be reduced by the amount of any real estate, less encumbrances thereon, if the letters issued to the personal representative contain the restriction that sales of real property by the personal representative are subject to court approval. On petition of the personal representative or another interested person, the Court may waive the bond requirement, increase or reduce the amount of the bond, release sureties, or permit the substitution of another bond with the same or different sureties.

What are the Duties of the Personal Representative? A personal representative is a fiduciary who shall observe the standards of care applicable to trustees under A.R.S. ' 14-7302 and the duties of accounting applicable to trustees as provided in A.R.S. ' 14-7303. A personal representative has the duty to settle and distribute the estate of the decedent in accordance with the terms of any probated and effective Will and Arizona law as expeditiously and efficiently as is consistent with the best interests of the estate.

The personal representative shall use the authority conferred by Arizona law, the terms of the Will, if any, and any order in proceedings to which the personal representative is a party for the best interests of successors to the decedent's estate. A.R.S. ' 14-3703.

The personal representative shall proceed expeditiously with the settlement and distribution of a decedent's estate and, except as otherwise specified or ordered in regard to a supervised personal representative, do so without adjudication, order or direction of the Court, but he may invoke the jurisdiction of the Court to resolve questions concerning the estate or its administration. A.R.S. ' 14-3704.

The personal representative's duties include, but are not limited to the following:

At the time of appointment as personal representative, preparing a Notice to Creditors, publishing it in a newspaper and delivering or mailing the Notice to known creditors of the decedent and other persons entitled to notice. A.R.S. ' 14-3801.

Not later than 30 days after being appointed, a personal representative must notify the heirs and devisees about the appointment of the personal representative as the personal representative of the estate of the decedent. A.R.S. ' 14-3705.

Within 90 days after appointment, a personal representative, who is not a special administrator or a successor to another representative who has previously discharged this duty, shall prepare an inventory of property owned by the decedent at the time of 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. The personal representative may file the original of the inventory with the court and send a copy of the inventory only to interested persons who request it; or, if he elects not to file the inventory with the court, he must deliver or mail a copy of the inventory to each of the heirs in an intestate estate, or to each of the devisees if a Will has been probated, and to any other interested persons who request it. A.R.S. ' 14-3706.

If the personal representative becomes aware of any property not included in the original inventory or if the personal representative learns that the value or description indicated in the original inventory for any item is erroneous or misleading, the personal representative must make a supplementary inventory or appraisement showing the market value as of the date of the decedent's death of the new item or the revised market value or descriptions, and the appraisers or other data relied upon, if any, and file it with the Court if the original inventory was filed, or furnish copies thereof or information thereof to persons interested in the new information. A.R.S. ' 14-3708.

Except as otherwise provided by a decedent's Will, every personal representative has a right to, and shall take possession or control of, the decedent's property, except that any real property or tangible personal property may be left with or surrendered to the person presumptively entitled to it unless or until, in the judgment of the personal representative, possession of the property by the personal representative will be necessary for purposes of administration. A.R.S. ' 14-3709.A

The personal representative shall pay taxes on, and take all steps reasonably necessary for the management, protection and preservation of the estate in the personal representative's possession. A.R.S. ' 14-3709.A

If the exercise of power concerning the estate is improper, the personal representative is liable to interested persons for damage or loss resulting from breach of his fiduciary duty to the same extent as a trustee of an express trust.

What Is An Inventory and Appraisement? It is important that you work with us in collecting and inventorying the assets and liabilities of the estate. As Personal Representative you have a fiduciary duty to protect the estate and to carry out the will of the decedent. YOU HAVE A SPECIFIC DUTY TO PREPARE AN INVENTORY OF THE ASSETS WITHIN 90 DAYS OF YOUR APPOINTMENT. You should keep careful and detailed accounts of all distributions and/or funds collected or spent on behalf of the estate. You will need to collect all cash in the name of the deceased person. You should identify and inventory all assets in the estate and send us copies of deeds and other assets documents. You will be obtaining high Blue Book appraisals on all real properties, along with letters substantiating the appraisals.

Should I open a checking account in the name of the estate? It is absolutely necessary that all funds of any kind belonging to the estate be deposited into this account. We previously discussed using her existing Desert Schools Credit Union Account. You should make a duplicate of all deposit slips. Each deposit slip should include the detail of the items deposited. All disbursements from the estate must be made from this account. Make all checks payable to a specific person or business. Do not make any checks payable to Acash@ or Amiscellaneous.@ You should make checks payable to yourself, except for cost reimbursement, expenses and fees that you have itemized on the accounting for the estate. Make a note on each check what it the payment for.

How Do I Handle Money and Assets? You should open a checking account in the name of the estate. It is absolutely necessary that all funds of any kind belonging to the estate be deposited into this account. You should make a duplicate of all deposit slips. Each deposit slip should include the detail of the items deposited. All disbursements from the estate must be made from this account. Make all checks payable to a specific person or business. Do not make any checks payable to Acash@ or Amiscellaneous.@ You should make checks payable to yourself, except for cost reimbursement, expenses and fees that you have itemized on the accounting for the estate. Make a note on each check what it the payment for.

How Are Distributions Made? Once you are appointed as Personal Representative and the issues of creditors' claims and estate taxes have been dealt with, you will be able to begin making distributions from the estate to the appropriate heirs. We will coordinate with you on preparing the necessary transfer instruments and other documentation necessary to make the distribution. Do not make any distributions to the heirs until the creditors' claims and estate tax issues have been appropriately dealt with.

What is the Notice to Creditors? By law it is necessary to publish a Notice to Creditors. It is also necessary to send written notice to all persons reasonably believed to have a claim against the estate. This is an important step in determining the liabilities of the estate, paying or denying creditor's claims, and starting the statute of limitations running on claims against the estate. In most cases, the estate will have sufficient assets to pay all creditors' claims. In some cases the creditors' claims may exceed the assets of the estate, in which case it may be necessary to deny some or all of the creditors' claims. Creditors' claims can have priority over distributions to the heirs. We will advise you if creditors' claims become an issue.

What is a Family Settlement Agreement? We generally recommend that all families enter into a settlement agreement in finalizing the estate so that there are no lingering questions or concerns about the administration of the estate and distribution of the assets. The family settlement agreement will include a waiver of accounting and release of liability for the service you have rendered in your capacity as Personal Representative.

What is the Cost of an Arizona Probate? In many jurisdiction the attorney's fees and executor=s fees for a probate are calculated as a percentage of the gross estate. The national average for probate fees is approximately 5% of the gross estate. Arizona has outlawed the practice of charging a percentage of the estate for fees. In Arizona, by law, the fees are determined by agreement of the parties, and they must be reasonable. The easiest measure of reasonableness is the amount of time it takes for the attorney to do the work, and the skill and experience of the particular attorney.

What Are My Federal Estate Tax Obligations? An estate tax is a tax on the transfer of property or interest in property that takes effect upon the owner=s death. If the estate is large enough that federal estate taxes are an issue, we will coordinate with you and/or the estate's CPA to prepare the necessary papers.

What Are My Arizona Estate Tax Obligations? An estate is not taxable, and no estate tax return is required to be filed if a federal estate tax return is not required. However, a Report of Personal Representative of Decedent must be filed with the Department of Revenue in order to obtain waivers to be used in connection with probate proceedings, to terminate joint tenancy on real property. We will assist you in this process.

Arizona Estate Administration Attorney
Phoenix Probate Real Estate Lawyer