Go to previous topic
Go to next topic
Last Post 21 Jul 2008 04:13 PM by  ecrowley
R-07-0012 Arizona Rules of Probate Procedure
 64 Replies
Author Messages
JRogers
Posts:

--
30 Oct 2007 11:46 AM
    R-07-0012

    PETITION FOR ADOPTION OF THE ARIZONA RULES OF PROBATE PROCEDURE

    TO PROVIDE STATEWIDE, STANDARDIZED PROBATE RULES; SIMPLE AND FUNCTIONAL FORMS ADAPTABLE TO INTERACTIVE WEB-BASED FORMATS; AND PROCEDURES TO EXPEDITE PROCESSES AND CASE MANAGEMENT

    Petitioner:
    Vice Chief Justice Rebecca White Berch, Chair
    Probate Rules Committee
    1501 W. Washington St., Phoenix, Az. 85007
    602-452-3535

    Filed October 30, 2007

    Comments are due May 20, 2008.

    ADOPTED as modified, effective January 1, 2009.
    Attachments
    William Klain
    Posts:

    --
    07 Nov 2007 04:56 PM
    William G. Klain
    8767 E. Via de Commercio, Suite 102
    Scottsdale, AZ 85258-0001
    480-947-1911
    wklain@lang-baker.com

    I note that proposed Rule 10(a)(2) of the proposed Arizona Rules of Probate Procedure, that section which authorizes limited scope representations, is silent as to how an attorney effectuates a withdrawal from a limited scope appearance upon completion of the representation. I suggest that the issue of withdrawal be addressed in the following manner. In the event the client consents to the withdrawal, the attorney would file a notice of withdrawal supported by client consent and a statement that the attorney has completed the representation specified in the notice of limited scope representation. Under such circumstances, the withdrawal would be effective upon filing of the notice. Absent client consent, the attorney would file a motion to withdraw and submit a form of order to the court. If no objection to the motion is filed, the court would sign the order unless it determines that the limited scope representation (as delineated in the notice of limited appearance) has not be completed. If objection to the motion is filed, the court would conduct a hearing to determine whether the representation has been completed.
    rbfleming
    Posts:

    --
    28 Jan 2008 07:51 PM
    Proposed Rule 6(A)(1) and 6(A)(2) require the filing of an information sheet with the proposed fiduciary's and proposed ward's Social Security numbers. Although this form is marked as a "Confidential Document," Rule 7(F)(2) permits any party or their counsel to view and copy all confidential information and documents. This needs to be modified so that no SSN disclosure occurs. I would suggest simply eliminating the SSN from the cover sheet altogether.

    Robert Fleming
    Fleming & Curti, PLC
    330 N. Granada
    Tucson, Arizona 85701
    520-622-0400
    www.elder-law.com
    www.specialneedsalliance.com
    rbfleming
    Posts:

    --
    28 Jan 2008 07:55 PM
    Rule 10(C)(1)(b) imposes a duty to include a Certified Fiduciary's number on all pleadings filed with the Probate Court. Since some Certified Fiduciaries are attorneys, it should be made clear that this rule only applies to documents filed by the Certified Fiduciary qua fiduciary.

    Robert Fleming
    Fleming & Curti, PLC
    330 N. Granada
    Tucson, Arizona 85701
    520-622-0400
    www.elder-law.com
    www.specialneedsalliance.com
    rbfleming
    Posts:

    --
    28 Jan 2008 07:59 PM
    Proposed Rule 10(C)(3)(a) requires a fiduciary, upon termination of his/her/its capacity as fiduciary, to read the requirements for termination of ALL types of fiduciaries. Might this be a little overkill? Perhaps they could be required to read only those sections applicable to the type of fiduciary they actually are in a given case? The Rule has no mechanism for establishing compliance. Must the final Petition for Discharge include an allegation that the Rule has been complied with?

    Robert Fleming
    Fleming & Curti, PLC
    330 N. Granada
    Tucson, Arizona 85701
    520-622-0400
    www.elder-law.com
    www.specialneedsalliance.com
    rbfleming
    Posts:

    --
    28 Jan 2008 08:04 PM
    Proposed Rule 10(D)(2) appears to require a filing of fees even in probate and trust interpretation proceedings. This would be a significant increase in the scope of current law and practice. It may be that the Proposed Rule only intends its application to cover cases in which the attorney is seeking to withdraw, but it does not so limit itself. Even if it is intended to apply only to withdrawal cases, it amounts to a major change in the law, which currently allows fiduciaries and their counsel to enter into private agreements subject only to disclosure and approval of the interested parties (since most probate and trust proceedings do not currently even include the filing of an accounting with the Court).

    Robert Fleming
    Fleming & Curti, PLC
    330 N. Granada
    Tucson, Arizona 85701
    520-622-0400
    www.elder-law.com
    www.specialneedsalliance.com
    rbfleming
    Posts:

    --
    28 Jan 2008 08:09 PM
    Proposed Rule 12, by requiring non-appearance hearings to be set at a specific time, would revert Pima County practice to an arrangement that proved confusing and wasteful. Although the notice might indicate that no one need appear, quite often unrepresented interested persons would show up at the time of the hearing, even though they had no objection to any of the relief requested, because it appeared to them that they had been commanded to appear. Hearings set for a date but no specific time help ameliorate that problem, since interested persons have to inquire of someone before they make the journey to the courthouse for a pointless appearance.

    Under the Proposed Rule, the confused unrepresented interested person will now be ordered to pay an appearance fee and every appearance turned into a contested proceeding. While that result might well be appropriate in some cases, it seems likely that the majority of cases could better be dealt with by simply getting information to the interested person that any objection needs to be filed, in writing, with an appearance fee if none has previously been paid, before the date on the non-appearance hearing notice.]

    Robert Fleming
    Fleming & Curti, PLC
    330 N. Granada
    Tucson, Arizona 85701
    520-622-0400
    www.elder-law.com
    www.specialneedsalliance.com
    rbfleming
    Posts:

    --
    07 May 2008 12:08 AM
    Proposed Rule 36 ("Renewal of Guardian's Inpatient Mental Health Authority") amounts to a complete revision of A.R.S. sec. 14-5312.01(P). That section mandates an annual report of a MH guardian to accompany the annual guardian's report. "If the report indicates that the ward currently needs this treatment, the guardian's authority to consent to this treatment continues. If the report supports the continuation of the guardian's authority to consent to this treatment, the ward's attorney shall review the report with the ward. The ward may contest the continuation of the guardian's authority by filing a request for a court hearing within ten business days after the report is filed."

    Note that the statute makes the continuation of authority automatic (assuming the physician/psychologist report supports continuation), mandates that the court-appointed attorney review the report with the ward, and then puts the burden on the ward to contest the continued authority. Meanwhile, the authority continues.

    The proposed Rule puts the burden of seeking continuation on the guardian, and requires an affirmative motion and hearing before continuation of the authority.

    Robert Fleming
    Fleming & Curti, PLC
    330 N. Granada Ave.
    Tucson, Arizona 85701
    520-622-0400
    www.elder-law.com
    www.specialneedsalliance.com
    rbfleming
    Posts:

    --
    07 May 2008 12:18 AM
    Surely Proposed Rule 33(A)(1) must be an inadvertent error. The problems with requiring every fee application to include "the current gross and net value of the estate" are innumerable, and the benefits of such a practice difficult to see:

    1. Not every guardian/conservator/attorney knows -- or has any reason to know -- the value of the estate.
    2. "Estate" is not defined. Should the affidavit include the value of all assets beneficially owned by the ward (in other words, trust assets)? If the point is to give the Judge a thumbnail view of the size of the fee request as a percentage of the "estate", then the entire value of property ought to be included. What about "estate" assets that are not under the authority of the Court? How will those values be checked?
    3. The value of the estate [i] [/i]as of when[i] [/i]? As of the time of the application? Does that mean that the conservator will be required to revalue the estate in order to seek fees? Or the value at the time of the last accounting? If that is the point, can't the Judge just look at, say, the last accounting?
    4. What is the "net value" of an estate? Does this mean deducting encumbrances? Will the guardian, the court-appointed attorney, or even the attorney for the fiduciary be charged with knowing the value of encumbrances?
    5. On the other side of the equation, what value is there to the Court to have this information on the fee application? If it is something beyond the ability to assess the proposed fee as a percentage of the size of the estate, it is an elusive benefit.
    6. After all the effort to maintain confidentiality about the ward's estate, the value is to be splashed across a pleading that is not a "confidential document" pursuant to Proposed Rule 7?

    Robert Fleming
    Fleming & Curti, PLC
    330 N. Granada Ave.
    Tucson, Arizona 85701
    520-622-0400
    www.elder-law.com
    www.specialneedsalliance.com
    rbfleming
    Posts:

    --
    07 May 2008 12:27 AM
    Proposed Rule 33(E) would require a listing of the salary information for every billing employee of the fiduciary. This would be impossible to accomplish (at least at our office, salaries actually change from year to year -- are we to include the salary in place for each employee at the time of each entry?), violate the privacy of every employee (remember that fee applications are not even confidential documents -- if they were, then the breach of employee's private information would only be to the subset of every interested person on every estate administered by the fiduciary) and present an incalculable administrative nightmare for every professional fiduciary (most employers, including fiduciaries, are eager to prevent office-wide discussions of salaries and comparisons among employees).

    Surely this information need not be required in every fee application. Would it not be more than sufficient to make clear that the Court may require supplementation in cases where the fees are questioned, and to make that supplementation a confidential document? Even that would cause significant problems for fiduciaries, of course, but the current iteration of the rule is a nightmare for fiduciaries.

    Robert Fleming
    Fleming & Curti, PLC
    330 N. Granada Ave.
    Tucson, Arizona 85701
    520-622-0400
    www.elder-law.com
    www.specialneedsalliance.com
    rbfleming
    Posts:

    --
    07 May 2008 12:35 AM
    Proposed Rule 33(G) would be a mistake. The whole sordid history of presumptive fee schedules has taught us that wherever they are proposed and adopted, they become minimum (rather than maximum) fees, and that they usually too-generously compensate fiduciaries.

    On the other hand, if the Court could establish a presumptive fee schedule and actually use it to lower fees, then the effect will be to drive out legitimate and excellent fiduciaries and leave the field to less-skilled, poorly-reviewed, but cheap fiduciaries. This may feel like a good move at the inception, but it would ultimately have a pernicious effect.

    I understand that the Proposed Rule does not mandate adoption of a fee schedule, but even sanctioning it by county option invites exactly the kind of non-uniformity these Proposed Rules were conceived to combat. Furthermore, what does it mean to indicate that the "superior court or county" is permitted to adopt a fee schedule? Does this mean that the Board of Supervisors in a given County is authorized to adopt a fee schedule for fiduciaries? The Public Fiduciary? Who is "the county" for purposes of this Proposed Rule?

    Robert Fleming
    Fleming & Curti, PLC
    330 N. Granada Ave.
    Tucson, Arizona 85701
    520-622-0400
    www.elder-law.com
    www.specialneedsalliance.com
    rbfleming
    Posts:

    --
    07 May 2008 12:39 AM
    Proposed Rule 33 is in its entirety cumbersome and unworkable, for the reasons I have already enumerated in addition to the general tenor of suspicion and the requirements of voluminous filings. The Comment to Proposed Rule 33, however, is generally excellent. I would suggest making the Comment the Rule, and adding a provision that the Court is permitted to require a fiduciary or counsel supplement any questioned fee affidavit as may be necessary in an individual case.

    Robert Fleming
    Fleming & Curti, PLC
    330 N. Granada Ave.
    Tucson, Arizona 85701
    520-622-0400
    www.elder-law.com
    www.specialneedsalliance.com
    rbfleming
    Posts:

    --
    07 May 2008 12:50 AM
    Proposed Rule 30(A) effectively exempts temporary conservators from having to file an inventory at all, and 30(C) arguably permits a temporary conservator to escape ever having to file an accounting (since the accounting is due after the nine-month anniversary of the permanent appointment). Neither place deals with the not-infrequent reality that one person may be appointed temporary conservator but another appointed as permanent conservator.

    I can understand that the date for the inventory and accounting have to be keyed off of some event, but what possible reason is there for not making the key date the first date a fiduciary has the authority to act, whether temporary or permanent? If the inventory is due 90 days after first appointment, and a different permanent conservator is appointed, the "problem" of figuring out due dates takes care of itself. If no permanent conservator is appointed, the due date for the accounting, and the requirement of an inventory, both take care of themselves. I respectfully submit that the key issue is not the title held by the fiduciary, but the reality of the fiduciary having handled the ward's money, that should trigger an obligation and a date by which that obligation should be fulfilled.

    Robert Fleming
    Fleming & Curti, PLC
    330 N. Granada Ave.
    Tucson, Arizona 85701
    520-622-0400
    www.elder-law.com
    www.specialneedsalliance.com
    rbfleming
    Posts:

    --
    07 May 2008 12:56 AM
    I like the idea of "Annual Conservatorship Plans" (Proposed Rule 30(B)), but am troubled by the proposal as it is contained here. When I asked a member of the Committee if any thought had been given to the increased cost of requiring yet another filing, and this one possibly a complicated and even contentious one, I was told not to blow the problem out of proportion -- you just fill out a two-page form and send it in, no big deal.

    Either the Annual Conservatorship Plan is a real document, conveying real information, and imparting value to the Court, the ward and the other interested persons, or it is a bit of busy-work required by yet another rule. If the former, it is going to cost something to the estate to produce, and it should include not just the ward's physical location and anticipated expenses, but also investment plans, some narrative about the ability of the estate to provide the ward's care, some notion of tax planning, gifting by the ward, and efforts to maximize the ward's autonomy and possible improvement. If it is envisioned as simply a two-page form that the conservator fills out and drops off, and the Court does not have time or staff to review substantively, why require it?

    Robert Fleming
    Fleming & Curti, PLC
    330 N. Granada Ave.
    Tucson, Arizona 85701
    520-622-0400
    www.elder-law.com
    www.specialneedsalliance.com
    rbfleming
    Posts:

    --
    07 May 2008 12:58 AM
    The Arizona Trust Code having been all but adopted by the Arizona Legislature, it would be a prudent effort to review all of the Proposed Rules for compliance with the new law. A number of changes in the ATC (for instance, the provisions about representative capacities, and the replacement of Guardians [i] [/i]ad litem[i] [/i] with "representatives" in new ARS sec. 14-1408) will either require or at least suggest reworking of some Rules.

    Robert Fleming
    Fleming & Curti, PLC
    330 N. Granada Ave.
    Tucson, Arizona 85701
    520-622-0400
    www.elder-law.com
    www.specialneedsalliance.com
    rbfleming
    Posts:

    --
    07 May 2008 01:02 AM
    Form 3 ("Order to Conservator and Acknowledgment") directs the conservator to file an inventory within 90 days of appointment, but does not note that the Proposed Rule only applies to permanent appointments. Similarly, the Order directs filing of an accounting covering the year after appointment, while the Proposed Rule directs that the accounting cover 9 months from the appointment. The Order should be modified to conform to the Rule as it is finally adopted.

    Robert Fleming
    Fleming & Curti, PLC
    330 N. Granada Ave.
    Tucson, Arizona 85701
    520-622-0400
    www.elder-law.com
    www.specialneedsalliance.com
    lprice66
    Posts:

    --
    08 May 2008 03:54 PM
    Lisa M. Price, RG, President, Arizona Fiduciaries Association, Inc.
    Certified Fiduciary Certificate No. 20120
    Entrust Fiduciary Services, Inc.
    P.O. Box 249
    Yuma, Arizona 85366-0249
    Telephone: (928) 782-0974
    Facsimile: (928) 782-3889
    Email: lisa.price@entrustfiduciary.com
    Website: www.entrustfiduciary.com


    Rule 6. Probate Information Form

    1. Rule 6(A)(1) fails to anticipate situations where the nominated fiduciary is a corporation.

    2. Rule 6(A)(1) and (2) requires the disclosure of the social security number of the nominated fiduciary and proposed ward/protected person. Rule 6(C) states that this information is confidential as outlined in Rule 7. The problem is that Rule 7 allows for this information to be disclosed to parties of the case and then allows for such information to be used as an exhibit in a trial, thereby making it a matter of public record.

    3. Rule 6(B) states that the court may, in its discretion, require that a trustee supply the information outlined in Rule 6(A)(2) for the trustor and trust beneficiaries. The comments section for Rule 6 states that the "sole purpose of the probate information form is to provide the court with the information it needs to identify accurately the fiduciary and the ward or protected person." I can understand the need for this information for the fiduciary as the court would need it to complete a fiduciary arrest warrant, but I cannot understand the need for this information for trust beneficiaries. I also do not believe that many trust beneficiaries would submit this information to the trustee for filing with the court. This is confidential information that the trustee does not have the right to disclose without the knowledge or consent of the trustor and/or trust beneficiaries.
    lprice66
    Posts:

    --
    08 May 2008 03:55 PM
    Lisa M. Price, RG, President, Arizona Fiduciaries Association, Inc.
    Certified Fiduciary Certificate No. 20120
    Entrust Fiduciary Services, Inc.
    P.O. Box 249
    Yuma, Arizona 85366-0249
    Telephone: (928) 782-0974
    Facsimile: (928) 782-3889
    Email: lisa.price@entrustfiduciary.com
    Website: www.entrustfiduciary.com


    Rule 7. Confidential Documents and Information

    While Rule 7(D) allows for a motion to be filed requesting confidential information be redacted from a document, this does nothing but cost the estate additional and unnecessary administrative costs.

    Rule 6 should be amended to either remove the requirement to provide a social security number or Rule 7 should be amended to require that the clerk of the court redact the social security number of the fiduciary, ward, trustor or trust beneficiary prior to providing this document to any interested party.

    The comments to Rule 7 state "If a party redacts account numbers or social security numbers from a confidential form, the form then may be made available for public viewing." This would seem to imply that prior to filing the probate information form as an exhibit in a hearing, the filing party would need to redact the social security numbers from the document but there is no provision for this in the rule. This needs to be clarified.
    lprice66
    Posts:

    --
    08 May 2008 03:58 PM
    Lisa M. Price, RG, President, Arizona Fiduciaries Association, Inc.
    Certified Fiduciary Certificate No. 20120
    Entrust Fiduciary Services, Inc.
    P.O. Box 249
    Yuma, Arizona 85366-0249
    Telephone: (928) 782-0974
    Facsimile: (928) 782-3889
    Email: lisa.price@entrustfiduciary.com
    Website: www.entrustfiduciary.com


    Rule 10. Duties Owed to the Court

    1. Rule 10(C)(1)(c) states a court-appointed fiduciary shall "file an updated probate information form that contains the information required by Rule 6 of these rules within ten days after any changes in such information, except that if the ward's physical address changes, the ward's guardian shall file the updated probate information form within 72 hours of learning of the change in address." Many local rules require the filing of a Notice of Change of Address when the ward has been moved. Does this rule then negate the need to file such a notice?

    2. Rule 10(C)(3)(a) requires that a fiduciary review all statutory requirements related to a personal representative, special administrator, guardian and conservator prior to termination of appointment. This rule should be amended to read "Before a court-appointed fiduciary may withdraw from a case or have the fiduciary's responsibilities judicially terminated, the fiduciary shall review the statutory requirements outlined below as directly related to the position held by the fiduciary:"

    Also, this section includes no mechanism to ensure this requirement has been met. As stated by Robert Fleming, will it be required that we attest to this in our final petition to the court?
    lprice66
    Posts:

    --
    08 May 2008 03:59 PM
    Lisa M. Price, RG, President, Arizona Fiduciaries Association, Inc.
    Certified Fiduciary Certificate No. 20120
    Entrust Fiduciary Services, Inc.
    P.O. Box 249
    Yuma, Arizona 85366-0249
    Telephone: (928) 782-0974
    Facsimile: (928) 782-3889
    Email: lisa.price@entrustfiduciary.com
    Website: www.entrustfiduciary.com


    Rule 19. Appointment of Attorney, Medical Professional, and Investigator

    Rule 19(A) requires that the order appointing the attorney, medical professional and investigator be submitted to the court "not less than 30 days before the scheduled hearing on the petition." Many times a hearing on a petition for appointment of guardian and/or conservator may be heard in less than 30 days from the date of filing the petition. This rule should contain the same language as that contained in Rule 11(B) which states "unless the notice of hearing provides for fewer than 30 days' notice, in which case the request shall be filed within five days after receipt of the notice setting the hearing." Alternatively, the language can simply state that the order shall be filed with the petition.
    lprice66
    Posts:

    --
    08 May 2008 04:04 PM
    Lisa M. Price, RG, President, Arizona Fiduciaries Association, Inc.
    Certified Fiduciary Certificate No. 20120
    Entrust Fiduciary Services, Inc.
    P.O. Box 249
    Yuma, Arizona 85366-0249
    Telephone: (928) 782-0974
    Facsimile: (928) 782-3889
    Email: lisa.price@entrustfiduciary.com
    Website: www.entrustfiduciary.com


    Rule 20. Affidavit of Proposed Appointee

    1. Rule 20(B)(1) requires that a certified fiduciary file an affidavit with the AOC which outlines all cases in which the certified fiduciary has been appointed as guardian and/or conservator within the previous three years, including dates of appointment, type of appointment, date of termination and reason for termination. According to the Yuma County Clerks office, this information is already being tracked by the court with software provided by the AOC. If that is the case, this rule is unnecessary and will only result in additional administrative cost to the fiduciary.

    2. Rule 20(B)(2) requires that a certified fiduciary file an affidavit with the AOC which outlines the names of all persons who the certified fiduciary has acted as an agent under a power of attorney (including a healthcare power of attorney) within the three previous years, including date the POA was executed, type of power, where the POA was executed, the actions taken by the fiduciary and whether such power is still in effect.

    First, individuals choose powers of attorney as an estate planning tool which allows them to keep their private information out of the public record. I do not believe that the fiduciary would have the authority to disclose this information without the consent of the principle.

    Second, this rule requires the fiduciary to outline the actions taken by the fiduciary while acting as the agent. There needs to be some explanation as to what information is being requested. Are you looking for a general overview of responsibilities or details?

    Third, the AOC currently has no authority to investigate or discipline a certified fiduciary for actions pursuant to a power of attorney. What is the purpose of providing this information if the AOC is unable to initiate any disciplinary proceedings related to alleged wrongdoing?

    Lastly, the reality is that the fiduciary can simply lie and say that they have not acted as a POA or leave out the cases in which there may be wrongdoing. There is no mechanism by which the AOC may verify this information. There is no requirement to record the POA, there is no requirement for filing with the court. This rule is cumbersome, will lead to additional administrative costs to the fiduciary and should be stricken in its entirety.

    3. The comments to Rule 20 indicated that the certified fiduciary may fulfill the affidavit requirement by filing the disclosure statement annually with the AOC. It goes on to state that the fiduciary shall notify the Supreme Court within thirty days of any "material changes relating to the certified fiduciary's status." What exactly does this mean? Does this mean that each time a certified fiduciary is appointed on a new case or discharged from a case that they must update that information with the AOC? Again, this would be extremely cumbersome, will lead to additional administrative costs to the fiduciary and should be stricken in its entirety.
    lprice66
    Posts:

    --
    08 May 2008 04:09 PM
    Lisa M. Price, RG, President, Arizona Fiduciaries Association, Inc.
    Certified Fiduciary Certificate No. 20120
    Entrust Fiduciary Services, Inc.
    P.O. Box 249
    Yuma, Arizona 85366-0249
    Telephone: (928) 782-0974
    Facsimile: (928) 782-3889
    Email: lisa.price@entrustfiduciary.com
    Website: www.entrustfiduciary.com


    Rule 25. Order to the Fiduciary

    Rule 25 does not make any provision for orders related to the appointment of a temporary guardian or temporary conservator. In my discussions with a fiduciary in Maricopa County there was a finding in an audit conducted by the AOC because the fiduciary failed to follow an order of the court, wherein the order required that the fiduciary file an inventory within 90 days of appointment. The fiduciary was appointed in a temporary capacity and therefore was not required by statute to file such an inventory, but because there was an order from the court requiring this filing, the fiduciary received a finding in their audit. There should be a provision in Rule 25 that either states that these orders only apply to the appointment of a permanent guardian and/or conservator or there should be a separate form for orders to temporary guardians and temporary conservators.

    Alternatively, the suggestions made by Robert Fleming regarding the requirement of the ticking clock to begin on the date the fiduciary takes control of the funds would seem appropriate.
    lprice66
    Posts:

    --
    08 May 2008 04:13 PM
    Lisa M. Price, RG, President, Arizona Fiduciaries Association, Inc.
    Certified Fiduciary Certificate No. 20120
    Entrust Fiduciary Services, Inc.
    P.O. Box 249
    Yuma, Arizona 85366-0249
    Telephone: (928) 782-0974
    Facsimile: (928) 782-3889
    Email: lisa.price@entrustfiduciary.com
    Website: www.entrustfiduciary.com


    Rule 33. Compensation for Fiduciaries and Attorney=s Fees

    1. Rule 33(A) requires a number of items to be included with a fiduciary's request for payment of services. The items outlined in this rule seem a bit overdone. For example, in addition to submitting a statement that outlines all services performed, the individual performing the task, the time expended, the name and position of the person performing the task, and the hourly rate charged for services, this rule requires an additional document that summarizes the total time, rate and total charged per person. What purpose does this serve? Many attorney and fiduciary time management programs will not allow an easy way to gather such information. As this is a requirement of the rules and must be filed with the court, the fiduciary and attorney will charge the time for creating such records to the estate. I could envision such a requirement taking many hours to complete, particularly in cases with a great deal of work and complex tasks.
    A better approach would be to require the items listed in Rule 33(A)(2) be included on the fiduciary and attorney's fee statement.

    2. Rule 33(E) needs more explanation. For example, what exactly constitutes an independent contractor? Does that include accountants, financial advisors, real estate agents, home health services, etc. which are utilized to provide services to a ward?

    Also, this rule requires the submission of information which is highly inappropriate related to the fiduciary's employee. This section states that "if the fiduciary is charging for services done directly by the fiduciary's employee, the fiduciary shall include in its petition for compensation a statement of the rates or hourly wages paid to each independent contractor or employee." I am not sure I understand this section. Employees provide direct services to clients all the time, such as reconciling bank statements, transporting to doctors appointments, etc. Is this rule to suggest that I must disclose the rate of pay I supply to my employee and then the hourly rate I charge to my clients for the services performed? I don't believe that many employers would agree to disclose the hourly rate paid to its employees in a public document.

    If the purpose of this rule is related to services performed outside of the standard employment of the fiduciary firm that needs to be clarified. For example, if you are referring to items such as the fiduciary employing an employee to provide housekeeping services to the ward as a separate contract employment agreement, that needs to be made more clear. This should not be happening in fiduciary offices to begin with as it would be a violation of the Code of Conduct as outlined in ACJA Section 7-202(J)(2)(b).

    3. Rule 33 seems to imply that a separate petition for approval of fees is required. Typically, a fiduciary requests approval of fees as part of the petition to approve the annual accounting. Will this still be permissible? If an additional petition is required, this will only result in additional administrative fees being charge to the estate of the ward.
    aginglawyer
    Posts:

    --
    08 May 2008 04:53 PM
    Allan D. Bogutz
    Bogutz & Gordon, PC
    Certified Professional Fiduciary
    Fellow, American College of Trusts and Estates Counsel
    Fellow, National Academy of Elder Law Attorneys
    3503 N. Campbell Ave.
    Tucson, AZ 85719-2007
    allan@bogutzand gordon.com

    I have reviewed all of the posts by Robert Fleming on this Forum regarding the Probate Rules proposals. I agree wholeheartedly with all of his comments and appreciate all of the effort that he has put forth to clarify these issues.

    Having practiced almost exclusively in this area for more than 36 years, I fear that these changes continue a trend to complicate matters and really make the system of guardianship and conservatorship unaffordable for a large portion of the public. There is a tone in all of the changes of very substantial distrust of those who seek to help others. Furthermore there is a lack of respect for the ability of the courts to identify where problems exist in the absence of huge amounts of costly documentation. Judges know where the problem cases exist but the changes continue the pattern of (economically) punishing the innocent who are the vast majority of those who seek to help others.

    When we make the system unaffordable, people divert themselves from the system completely. Those who do so use powers of attorney, trust agreements, joint accounts, casually executed documents or other means to access the funds of others. Those who are truly determined to exploit others are not likely to involve themselves in the judicial system at all. What we are doing here is a further step towards making access to the useful system of court-administered guardianships and conservatorships impossible for most of the public.

    Mr. Fleming's comments are all astute. What will be the impact on my staff or the staffs of other offices if their salaries and other compensation are now public record? What is the benefit of making social security numbers more readily accessible? What is the benefit of forcing additional reams of paper to be filed with the court? And how do these benefits balance against the extra cost of all of the preparation, costs ultimately borne by the estates of those we are protecting.

    Perhaps we all need to take a step back and change our presumptions. It appears from these proposals that we presume that all guardians and conservators are bent upon exploiting and we are going to take every step to find them and how they do it. What if we were to presume, properly I believe, that the vast majority, the overwhelming majority of those appointed by the court are honest, conscientious and intent on helping their wards/protected persons? If we were to make that simple attitude shift, it would then mean that each of the proposed burdensome new mandatory rules could simply be changed from "shall...." to "in appropriate cases, the court may order......"

    I am not a Pollyanna who believes there is neither evil nor overreaching in our midst but we have to be more careful about how much we punish the innocent to find the very few guilty. Very few people steal, misappropriate, misapply or commingle. Very few Professional Fiduciaries overcharge or mishandle money. Yet these proposed rules make it all much harder for everyone, much more expensive and more unaffordable for many more clients, removing any protection by the court system at all.

    Abraham Lincoln said: "When you look for the bad in mankind expecting to find it, you surely will." I think that is what we are doing with these changes. The system is not broken; it is working. There is little we can do to prevent the few bad persons from abusing it but we need to give the judges the tools -- WHEN THEY NEED THEM -- to find those persons, gather necessary information and act accordingly to protect the vulnerable among us.

    My recommendations are simple:
    1. Assume most people are of good intent and do a good job.
    2. Change the mandatory nature of ALL of the additional disclosures to being optional in specific cases at the discretion of the judge.
    3. Find ways to REDUCE the cost of this process.

    Allan D. Bogutz
    dshepherd
    Posts:

    --
    08 May 2008 06:50 PM
    Denice Shepherd
    Law Office of Denice R. Shepard PC
    2424 E. Speedway Blvd.
    Tucson, AZ 85004
    Phone: (520) 623-3526
    Fax: (520) 622-6971
    Email: Denice.Shepherd@azbar.org


    Rule 30 (3) fails to define "erroneous or misleading" values. The failure to provide a definition may lead to unnecessary litigation and places an unreasonable burden on the conservator and an unreasonable burden on the person's estate. Since this rule specifically includes non-appraised items family member's perceptions of values may cause the conservator to seek court intervention unnecessarily just to attempt to comply with this rule.

    rbfleming
    Posts:

    --
    09 May 2008 03:22 PM
    Robert Fleming
    Fleming & Curti, PLC
    330 N. Granada
    Tucson, Arizona 85701
    520-622-0400
    www.elder-law.com
    www.specialneedsalliance.com

    This observation by Denice is exactly correct. In fact, I am involved in the very case she describes right now -- and the new rule would exacerbate the situation. As Personal Representative I have been challenged for using property tax assessment figures for real estate values rather than securing a formal appraisal. The challenge has come from the sole beneficiary, who is apparently convinced that I am planning on selling the property for the assessed value. With this Proposed Rule in place, he would be clamoring even more vigorously for sanctions, even though the effect is simply to incur an unnecessary administrative expense that ultimately comes from his inheritance.

    I appreciate that there is a complete defense to the charge now, and that the addition of this Rule would not change the merits of the question. My point is just that someone who doesn't understand the rules very well already will be further confused and aroused by language like "erroneous and misleading" values.

    One change might be to expressly include language that the use of tax assessment values is presumptively not erroneous or misleading. Another might be to carefully and exhaustively define "erroneous and misleading." A third might be to simply delete this redundant provision.

    cwisnom
    Posts:

    --
    09 May 2008 04:03 PM
    I first wish to state my appreciation and understanding for the work that has gone into these proposals. I’ve worked on enough of these committees to understand the effort that goes into each line and word through a group of people. I also realize that my “preamble” is unlikely to result in any constructive changes in the proposals, but I would still like to share them as part of the commentary, in response to the committee’s own preamble. While expressing these opinions, I hope the more specific comments which should be more constructive will still be duly and seriously considered.

    As a preamble to these comments, it seems overall these rules in many cases present a solution without a problem. For the most part Arizona has clear statutory law guiding the substantive aspects of the law which will be governed by these rules. Having appeared in courts across the various Arizona counties, I’ve never found significant problems or issues in the way each court is run, especially in uncontested matters which represent such a large amount of probate matters, and the attempt to enact some rather significant changes for all probate practitioners across the state to minimize the differences between courts in different counties, especially when the changes seem to favor more elaborate rules or procedures, is going to unnecessarily increase the costs to the clients, beneficiaries, minors, and protected persons whom these courts are intended to serve, without a true benefit. Especially when enough discretion is granted under certain rules that each court will end up running things “their” way.

    The concern is particularly that these rules unduly burden uncontested matters, unnecessarily multiplying efforts and fees without benefit. From my humble perspective, some of these rules will not ensure the effective conduct of probate cases, but will make them just that more difficult. The focus to reconcile proceedings in contested matters is much more reasonably taken, to ensure opposing parties are not disadvantaged in another county, but that is not addressed so much here, and is much more appropriately addressed in the rules of civil procedure so much of this focuses on other situations. I do, however, applaud the specific allowances for uncontested proceedings as set forth in Proposed Rule 3 D 2.

    Second, while it may appear self-serving to take issue with the goal of providing self-service forms for individuals, it seems that the approach is to devalue the work, value, and importance of attorneys who practice in this area. It does not appear to me the bar or the Supreme Court encourages individuals to take on their own personal injury cases, medical malpractice, criminal defense, or other similar matters. It seems to imply that those are serious and difficult cases that should not be handled without an attorney, but probate matters are not. I understand that there is a reality of clients handling these cases themselves, which must be addressed, but I hope the court realizes the mixed message that is sent under these circumstances.

    Third, the use of additional probate rules and procedures to deal with fraud and theft seems like something that will not catch any more of the dishonest out there, while creating additional burdens for the honest. This is the type substantive issue properly addressed by law, not court rules.

    Craig Hunter Wisnom
    Bogutz & Gordon, P.C.
    3503 N. Campbell Avenue Suite 101
    Tucson, Arizona 85719
    (520) 321-9700
    www.bogutzandgordon.com
    cwisnom
    Posts:

    --
    09 May 2008 04:04 PM
    RULE 2.

    I recommend that M include as an additional “Probate Case” the appointment of a successor Custodian under the UTMA provisions, when required by a court, under A.R.S. §14-7668(D), which may be commenced in the probate court solely for this purpose.

    Craig Hunter Wisnom
    Bogutz & Gordon, P.C.
    3503 N. Campbell Avenue Suite 101
    Tucson, Arizona 85719
    (520) 321-9700
    www.bogutzandgordon.com
    cwisnom
    Posts:

    --
    09 May 2008 04:05 PM
    RULE 3, D, 2.

    This provision is a helpful addition.

    Craig Hunter Wisnom
    Bogutz & Gordon, P.C.
    3503 N. Campbell Avenue Suite 101
    Tucson, Arizona 85719
    (520) 321-9700
    www.bogutzandgordon.com
    cwisnom
    Posts:

    --
    09 May 2008 04:05 PM
    RULE 4., A, 1, describes the commencement of a Decedent’s Estate Case only by reference to appointing a Personal Representative, formally or informally, although it includes by reference the statutes by which a determination of probate or intestacy is made. While not terribly common, there are times where an application for probate or determination of intestacy is made WITHOUT the appointment of a personal representative, for instance, where a Will must be probated to confirm its exercise of a power of appointment, but there are no estate assets to administer. So this rule might more completely read, “informal appointment of a personal representation, probate, and/or determination of intestacy” and “formal appointment of a personal residence, probate, and/or determination of intestacy”.., or something to that effect.

    Craig Hunter Wisnom
    Bogutz & Gordon, P.C.
    3503 N. Campbell Avenue Suite 101
    Tucson, Arizona 85719
    (520) 321-9700
    www.bogutzandgordon.com
    cwisnom
    Posts:

    --
    09 May 2008 04:06 PM
    RULE 9, A

    This requires the Notice to include the Judicial Officer. Currently, the calendaring department in Pima County does not provide this information, therefore, this is going to make the court add that at the time they schedule a hearing, and have that information available in advance. A concern is that the commissioners, for instance, who hear cases in Pima County are somewhat flexible in their schedule, and the officer sometimes will change for whatever reason, and it should be clear that a different commissioner covering the calendar on the day of the hearing should not invalidate the notice given.

    Craig Hunter Wisnom
    Bogutz & Gordon, P.C.
    3503 N. Campbell Avenue Suite 101
    Tucson, Arizona 85719
    (520) 321-9700
    www.bogutzandgordon.com
    cwisnom
    Posts:

    --
    09 May 2008 04:06 PM
    RULE 10 C 3 (a)

    I concur with Mr. Fleming that this should be limited to the applicable duties, not all.

    Craig Hunter Wisnom
    Bogutz & Gordon, P.C.
    3503 N. Campbell Avenue Suite 101
    Tucson, Arizona 85719
    (520) 321-9700
    www.bogutzandgordon.com
    cwisnom
    Posts:

    --
    09 May 2008 04:06 PM
    RULE 10 D 1

    This rule relates to the unfortunately common experience of a fiduciary who drops off the map in terms of responses and action, frequently when most if not all of the estate issues are resolved, but the attorney cannot get through to them to complete the required documents or actions to close the estate. This requires a status report that “confirms that all guardian reports, accountings or other required reports have been filed and that all statutory requirements have been met.” In most if not all of these cases, there is work, at least nominal, yet undone, and that is why the attorney is withdrawing. If all statutory requirements (i.e., a closing statement) are done and filed, then the attorney doesn’t need to withdraw in this manner. Therefore, it seems this should be adjusted to add something to the effect of, “or, if such reports have not been filed and/or requirements have not been yet, the status of those to the best of the attorney’s knowledge.” Otherwise you are hamstringing an attorney from fairly extracting themself from the case.

    Craig Hunter Wisnom
    Bogutz & Gordon, P.C.
    3503 N. Campbell Avenue Suite 101
    Tucson, Arizona 85719
    (520) 321-9700
    www.bogutzandgordon.com
    cwisnom
    Posts:

    --
    09 May 2008 04:07 PM
    RULE 10 D 2

    I concur with Mr. Fleming’s indication that this appears overly broad, probably unintentionally so, but either way, requiring a statement of all fees for all attorneys where not otherwise required by law is intrusively expansive and unnecessary. Even if it is a withdrawal, the requirement to cite unpaid fees is understandable, put paid fees still seems unnecessary.

    Craig Hunter Wisnom
    Bogutz & Gordon, P.C.
    3503 N. Campbell Avenue Suite 101
    Tucson, Arizona 85719
    (520) 321-9700
    www.bogutzandgordon.com
    cwisnom
    Posts:

    --
    09 May 2008 04:07 PM
    RULE 10 E

    There’s no comment about what this requirement to diligently pursue cases means. A prodigal personal representative is already violating enough general duties under law, this procedural additional seems unnecessary. This seems at best some vague ethical aspiration, and without any practical direction to the attorney, party, or court, I don’t know why it should be added to this.

    Craig Hunter Wisnom
    Bogutz & Gordon, P.C.
    3503 N. Campbell Avenue Suite 101
    Tucson, Arizona 85719
    (520) 321-9700
    www.bogutzandgordon.com
    cwisnom
    Posts:

    --
    09 May 2008 04:07 PM
    RULE 11.

    The comment to the rule points out the efficiency that can be involved in a telephonic hearing. It is unclear why a full 30 days advance notice is the default for any situation. Since the discretion is already granted to the court official, why start with this onerous requirement? It seems that 5 day notice should be sufficient, but 10 or even 15 days would be much more reasonable, at least for any uncontested matter. If the court does not grant it or the officer does not have time to grant it, then the person requesting it is out of luck, but in many situations that could be accomplished and setting the presumptive time limit would stop what is otherwise an efficient process. As always, if for some reason the officer thinks it inappropriate, this gives them discretion to deny. Or, is this intended so that if you file a motion five days before a hearing, because something happened to your client who is now unable to get to Arizona, the same written request filed with the officer can contain the officer’s override of the 30 day requirement.

    Craig Hunter Wisnom
    Bogutz & Gordon, P.C.
    3503 N. Campbell Avenue Suite 101
    Tucson, Arizona 85719
    (520) 321-9700
    www.bogutzandgordon.com
    cwisnom
    Posts:

    --
    09 May 2008 04:07 PM
    RULE 12.

    While it is understandable to grant judicial officers reasonable discretion (see my comments on Proposed Rule 11), this Proposed Rule is an example of the fact that many of these grants of discretion lead to the same kind of divergence between the counties that these uniform rules seek to avoid. For instance, here, it says anytime testimony is not required by law, it MAY be set for a non-appearance hearing. This could be of great benefit, for some typical appearance hearings that should come into this would be appointment of a successor UTMA custodian, appointment of a successor Trustee or other instructions or modification with respect to the Trust. However, if Pima County commissioners decide they will hear those on a non-appearance basis, and Pinal County does not, then you have a separate set of idiosyncratic rules, much like those purportedly being addressed by these monolithic changes. I’d rather have each county having its rules which can at least tell me what they are, rather than relying on what will become the custom and tendency for each particular court when broad discretion is granted.

    Craig Hunter Wisnom
    Bogutz & Gordon, P.C.
    3503 N. Campbell Avenue Suite 101
    Tucson, Arizona 85719
    (520) 321-9700
    www.bogutzandgordon.com
    cwisnom
    Posts:

    --
    09 May 2008 04:08 PM
    RULE 14.

    Since waiver of bond is such an important and common issue in probate proceedings, it would seem that as long as we’re codifying these rules in details, that A. 2 should say, “Waiver of any right, including bond, notice, and priority of appointment.”

    Craig Hunter Wisnom
    Bogutz & Gordon, P.C.
    3503 N. Campbell Avenue Suite 101
    Tucson, Arizona 85719
    (520) 321-9700
    www.bogutzandgordon.com
    cwisnom
    Posts:

    --
    09 May 2008 04:08 PM
    RULE 15.

    As written, it appears that all of the orders in non-contested cases, such as Guardianships, Conservatorships, Formal Probates, Trust instructions, etc., would need to be lodged at least five days in advance. If it is the purpose that this rule actually require this, this would drastically change the practice observed in Pima County, and at least that typically seen in other counties as well, that allow parties to present an Order at the hearing for signature. Does the committee see some problem with this general practice, because if not, this rule should somehow be modified or limited. The extra processing step of sending this order to the court in advance each time would add some extra effort and expense to every simple proceeding.

    Craig Hunter Wisnom
    Bogutz & Gordon, P.C.
    3503 N. Campbell Avenue Suite 101
    Tucson, Arizona 85719
    (520) 321-9700
    www.bogutzandgordon.com
    cwisnom
    Posts:

    --
    09 May 2008 04:08 PM
    RULE 19.

    This states that you need to get an order at least 30 days before the scheduled hearing to appoint the physician, attorney, etc. It seems that we commonly get hearing dates scheduled slightly less than 30 days from the hearing. My suggestion would be to make this 25 days, which should avoid the possibility.

    Craig Hunter Wisnom
    Bogutz & Gordon, P.C.
    3503 N. Campbell Avenue Suite 101
    Tucson, Arizona 85719
    (520) 321-9700
    www.bogutzandgordon.com
    cwisnom
    Posts:

    --
    09 May 2008 04:09 PM
    RULE 20 (B)(2)

    This reporting requirement, which, by the way, seems nothing to do with the probate rules followed by any Arizona court, is an IMMENSE additional requirement for certified fiduciaries. I’m assuming the intent is that when a fiduciary engaged in mass fraudulent conduct is discovered, the Supreme Court would like to have on file all their clients prior to the most recent June, and can track down what they’ve done wrong. While that idea might sound good initially on paper, I think adding a fairly burdensome administrative reporting requirement out there is again focusing too much on the few bad eggs out there, and probably won’t do anything to catch or dissuade them. The type of fiduciaries engaged in mass theft are not going to be the people I trust to complete these accurately, and so you’ve increased an administrative burden without really doing anything to prevent the conduct in question. And the scope of this is ridiculously extreme. If I am a certified fiduciary, I have to keep track of any time in 3 years where I may have had to make a temporary medical decision for a client who needed a surrogate for a very brief period? And what are the actions taken that need to be enumerated, “Having acted as agent”? Or does it required a detailed statement of every “action.”

    If the commission is concerned that there isn’t enough training or oversight required to give someone the certification of a certified fiduciary (and this really seems beyond the scope of probate rules), than they should look into beefing up this program, because this backhanded attempt doesn’t do anything constructive, but it does make things more onerous on the conscientious who will comply.

    Craig Hunter Wisnom
    Bogutz & Gordon, P.C.
    3503 N. Campbell Avenue Suite 101
    Tucson, Arizona 85719
    (520) 321-9700
    www.bogutzandgordon.com
    cwisnom
    Posts:

    --
    09 May 2008 04:09 PM
    RULE 30 (B)

    I concur with Mr. Fleming’s comments on the proposed plan, on top of all other documents, reportings, and accountings required, one more thing adds to the cost for clients of these procedures, without imparting any additional benefit or protection on the person. Over the past 10 years we’ve seen the number of required documents filed with standard conservatorships and other matters rise greatly, and I would be hard pressed to determine that any protected person is more protected under the additional paperwork than they were previously.

    Craig Hunter Wisnom
    Bogutz & Gordon, P.C.
    3503 N. Campbell Avenue Suite 101
    Tucson, Arizona 85719
    (520) 321-9700
    www.bogutzandgordon.com
    cwisnom
    Posts:

    --
    09 May 2008 04:09 PM
    RULE 33

    I concur with Mr. Fleming’s specific and general comments on this Proposed Rule in the strongest possible terms. This is an extreme expansion of the information necessitated to the court, and goes far beyond what the court already can do to determine when fees are reasonable. It seems the judicial officers are completely capable of making determination of fees are reasonable or not, and certainly nothing in this morass of required information will make this even easier. THE REQUIREMENTS TO MAKE PUBLIC ANY FIDUCIARY’S EMPLOYEES SALARIES IS BEYOND ABSURD. “If the fiduciary is charging for services done directly by the fiduciary’s employee” we have to disclose that employee’s salary. Our firm has to tell the court anytime our fees are submitted for approval what the paralegals make? Or when there is a flat or percentage fee, all employees’ wages must be submitted?

    A rate schedule is something that may initially sound like a good idea, but I agree with Mr. Fleming that it can really serve no benefit or purpose in practical application.

    Craig Hunter Wisnom
    Bogutz & Gordon, P.C.
    3503 N. Campbell Avenue Suite 101
    Tucson, Arizona 85719
    (520) 321-9700
    www.bogutzandgordon.com
    RTCoventry
    Posts:

    --
    16 May 2008 01:42 PM
    I concur with Robert Fleming--Proposed Rule 6(A)(1) and 6(A)(2) requires the proposed fiduciary's and proposed ward's Social Security numbers. I also suggest eliminating the SSN from the cover sheet altogether.

    Roger T. Coventry
    Assistant Public Fiduciary
    Maricopa County
    Certified Fiduciary No. 20451
    222 N. Central Ave., Suite 4100
    Phoenix, AZ 85004
    (602) 506-7120
    nasha
    Posts:

    --
    16 May 2008 05:13 PM
    Hon. Patti Noland, President
    Arizona Association of Superior Court Clerks
    110 W. Congress, 1st Floor
    Tucson, Arizona 85701
    520-740-3201
    nasha@COSC.maricopa.gov
    Attachments
    Kate McMillan
    Posts:

    --
    19 May 2008 03:53 PM
    Kate McMillan
    3920 East 5th Street
    Tucson Arizona 85711
    (520) 327 6161
    (520) 318-1516
    kmcmillan@theriver.com
    Arizona Bar Number 3956
    Attachments
    bdburnside2
    Posts:

    --
    19 May 2008 07:17 PM
    Benjamin Burnside
    Bogutz & Gordon
    3503 N. Campbell Ave., Suite 101
    Tucson, AZ 85719-2007
    520-321-9700
    ben@bogutzandgordon.com

    Rule 6 A.1.(f) and 2.(e)

    I concur with the concern of others about making Social Security numbers more accessible, even if only by parties in cases. With the trend toward non-disclosure of Social Security numbers in general, why require even greater disclosure of this sensitive information often used in identity theft?
    bdburnside2
    Posts:

    --
    19 May 2008 07:23 PM
    Benjamin Burnside
    Bogutz & Gordon
    3503 N. Campbell Ave., Suite 101
    Tucson, AZ 85719-2007
    520-321-9700
    ben@bogutzandgordon.com

    Rule 9 A.

    Requirement to indicate judicial officer hearing case in notice is difficult and unnecessary. We often do not know this information at time of notice, the officer hearing the case can change, and so long as the judicial officer is legally qualified why is this information relevant? So long as interested parties have the date, time and location, along with information about the matter being heard (copy of petition, etc.), there is no need to indicate in the notice which judicial officer will be hearing the case.

    bdburnside2
    Posts:

    --
    19 May 2008 07:28 PM
    Benjamin Burnside
    Bogutz & Gordon
    3503 N. Campbell Ave., Suite 101
    Tucson, AZ 85719-2007
    520-321-9700
    ben@bogutzandgordon.com

    Rule 9 B.1.

    A written objection should be allowed less than five days prior to the hearing without having to make an appearance. Pima County has used Rule 9.5 (d)(1) with a three day period. Adding those extra two days, though they seem insignificant, could often require the time and expense of appearing personally that could be avoided with a written objection.
    bdburnside2
    Posts:

    --
    19 May 2008 07:31 PM
    Benjamin Burnside
    Bogutz & Gordon
    3503 N. Campbell Ave., Suite 101
    Tucson, AZ 85719-2007
    520-321-9700
    ben@bogutzandgordon.com

    Rule 10 D.1.

    Withdrawal is often made due to non-compliance by the fiduciary with instructions from his or her counsel. Therefore, requiring that the attorney "confirms that all guardian reports, accountings, or other required reports have been filed and that all statutory requirements have been met" might prohibit the attorney from fulfilling his or her obligation not to continue to represent a wayward fiduciary. It is unduly burdensome and unrealistic in many cases.
    bdburnside2
    Posts:

    --
    19 May 2008 07:33 PM
    Benjamin Burnside
    Bogutz & Gordon
    3503 N. Campbell Ave., Suite 101
    Tucson, AZ 85719-2007
    520-321-9700
    ben@bogutzandgordon.com

    Rule 10 D.2.

    A disclosure should be required only of unpaid fees, not those already paid, upon withdrawal.
    bdburnside2
    Posts:

    --
    19 May 2008 07:36 PM
    Benjamin Burnside
    Bogutz & Gordon
    3503 N. Campbell Ave., Suite 101
    Tucson, AZ 85719-2007
    520-321-9700
    ben@bogutzandgordon.com

    Rule 10 E.

    The requirement that parties and counsel diligently pursue their cases seems like stating the obvious, and yet might open up more contention over the meaning of the term "diligently." Counsel already has specific ethical requirements to fulfill and does not need this admonition. Parties have statutory duties as fiduciaries. This provision, though I am sure is well intended, should be deleted.
    bdburnside2
    Posts:

    --
    19 May 2008 07:40 PM
    Benjamin Burnside
    Bogutz & Gordon
    3503 N. Campbell Ave., Suite 101
    Tucson, AZ 85719-2007
    520-321-9700
    ben@bogutzandgordon.com

    Rule 11 B.

    Telephonic appearances are a reality in this mobile society and cut court costs and ease judicial administration. In any event, a court can always deny a motion to appear telephonically for its own reasons. Why mandate a 30 day (too long under most circumstances) or 5 day after receipt of notice period for such a motion? Judges can decide which cases merit telephonic appearances and which do not without arbitrary periods being set by rule.
    bdburnside2
    Posts:

    --
    19 May 2008 07:43 PM
    Benjamin Burnside
    Bogutz & Gordon
    3503 N. Campbell Ave., Suite 101
    Tucson, AZ 85719-2007
    520-321-9700
    ben@bogutzandgordon.com

    Rule 15 A.5.

    Requiring the lodging of an order five days prior to the hearing seems unnecessary. Unless there has been a demonstrated problem in the courts without having such a requirement, it seems such a rule is unnecessary. There are often events affecting the language of such an order that are happening immediately prior to the hearing date, and late changes to the language of such an order allow the parties flexibility in getting the order just right.
    bdburnside2
    Posts:

    --
    19 May 2008 07:46 PM
    Benjamin Burnside
    Bogutz & Gordon
    3503 N. Campbell Ave., Suite 101
    Tucson, AZ 85719-2007
    520-321-9700
    ben@bogutzandgordon.com

    Rule 17 D.1.

    Requiring an objection to be filed five days prior to a hearing, or requiring appearance in person, will add to the expense and burden of having to appear at hearings that could be avoided with a three day requirement, as used now in Pima County. Those two days often yield either resolution of contentious issues or confirm the need for an objection and avoid the need for an initial hearing.
    bdburnside2
    Posts:

    --
    19 May 2008 07:52 PM
    Benjamin Burnside
    Bogutz & Gordon
    3503 N. Campbell Ave., Suite 101
    Tucson, AZ 85719-2007
    520-321-9700
    ben@bogutzandgordon.com

    Rule 19.A.

    Requiring that the order appointing attorney, medical professional and investigator be filed 30 days prior to the hearing date will at times conflict with the actual time provided before the hearing date. Some flexibility should be given in the rule to the court and parties in cases in which a hearing date is scheduled fewer than 30 days from the filing of the petition (and such order).
    bdburnside2
    Posts:

    --
    19 May 2008 07:59 PM
    Benjamin Burnside
    Bogutz & Gordon
    3503 N. Campbell Ave., Suite 101
    Tucson, AZ 85719-2007
    520-321-9700
    ben@bogutzandgordon.com

    Rule 20 B.1. and B.2.

    These requirements of reporting of cases in which the certified fiduciary has acted as guardian, conservator or agent are unduly burdensome and duplicative. It is especially troubling that so much information need be provided in cases of an agency under power of attorney, since principals establish such arrangements in part to maintain privacy and avoid court involvement. It is questionable whether the disclosure of such information can even be required by these rules, and requiring the actions of the agent to be disclosed is at best vague. Exactly what actions are meant and in how much detail? It is questionable whether unethical fiduciaries would honestly self-report such information, and also questionable as to how courts will review such information and determine whether further action is required. This rule assumes that courts are ready and able to take on such additional monitoring.
    bdburnside2
    Posts:

    --
    19 May 2008 08:10 PM
    Benjamin Burnside
    Bogutz & Gordon
    3503 N. Campbell Ave., Suite 101
    Tucson, AZ 85719-2007
    520-321-9700
    ben@bogutzandgordon.com

    Rule 30 B.1.

    Annual conservatorship plans will be an additional requirement and burden for parties and the courts. Compliance with these will likely be in the form of highly speculative and poorly thought out guesses at what the next year holds for a conservatorship.

    (b) anticipated services to be provided by the conservator will have to be described in only the most general terms, since the need for such services is often impossible to determine ahead of time.

    (c) special needs or requests are even more difficult to determine in advance.

    (d) anticipated expenses, including fiduciary fees or attorney fees, often based on time spent, are at best speculative, and may encourage a high estimate of such amounts to avoid the appearance of being "over budget." And will courts avoid some sort of bad outcome by requiring such estimates, and will courts or interested persons act prospectively on such information?

    (e) a management plan including major changes in financial strategies or status again is an exercise in predicting the future, since such decisions must be made due to changing market conditions, needs for disbursements, etc.

    Requiring such conservatorship plans will likely become a pro forma filing that adds little oversight to the process.
    bdburnside2
    Posts:

    --
    19 May 2008 08:13 PM
    Benjamin Burnside
    Bogutz & Gordon
    3503 N. Campbell Ave., Suite 101
    Tucson, AZ 85719-2007
    520-321-9700
    ben@bogutzandgordon.com

    Rule 33 A.1.

    Requiring gross and net estate values, as mentioned in other comments, would require substantial work to have any real meaning and seems of little relevance to the reasonableness of fees in most cases. And, also as mentioned in other comments, will such information be kept confidential in the same manner as accountings, etc.? It seems that existing requirements for inventories, accountings, etc. are sufficient.
    bdburnside2
    Posts:

    --
    19 May 2008 08:16 PM
    Benjamin Burnside
    Bogutz & Gordon
    3503 N. Campbell Ave., Suite 101
    Tucson, AZ 85719-2007
    520-321-9700
    ben@bogutzandgordon.com

    Rule 33 E.

    The requirement that fee affidavits disclose the earnings of employees of fiduciaries surely must be an oversight. This will cause an uproar when word of this reaches practitioners, fiduciaries and the general public. This requirement cannot stand. It is an invasion of privacy and irrelevant to the determination of the reasonableness of fees.
    bdburnside2
    Posts:

    --
    19 May 2008 08:20 PM
    Benjamin Burnside
    Bogutz & Gordon
    3503 N. Campbell Ave., Suite 101
    Tucson, AZ 85719-2007
    520-321-9700
    ben@bogutzandgordon.com

    Rule 33 G.

    Even suggesting fee schedules to be set by the superior court or county (a curious addition) could have the negative effects suggested in other comments, either by setting such fees unreasonably high or capping such fees too low and driving out the most qualified fiduciaries from the area. There are significant differences in the quality of services offered and judges are equipped to make a case by case determination in each unique situation.
    freyandfrey
    Posts:

    --
    20 May 2008 10:03 AM
    Jacqueline Frey
    Frey and Frey
    3120 N. Arizona Ave., Suite 103
    Chandler, AZ 85225-2997
    480-786-0297
    mail@freyandfrey.com

    Rule 33 (D)

    This rule limits the ability of a friend to serve as a fiduciary. If I correctly understand the intention, the apparent purpose of the rule is to prevent a friend from receiving compensation for service as a fiduciary. This is a major change from current law and practice. There are a number of problems with this rule, and I respectfully express strong objection to it based on many years of working in the areas of estate planning, guardianship, conservatorship and probate.

    The rule allows fiduciary compensation only to three approved categories: (1) “A fiduciary related to the subject ward, protected person, or decedent,” (2) a fiduciary “certified by the Supreme Court pursuant to ARS 14-5651,” or (3) a fiduciary that is a “financial institution as defined in ARS 14-5651(J)(2).”

    1.What is “related?” A clear definition of this term is essential.
    2.The rule uses terms that refer to a guardianship, a conservatorship and a probate, as follows: “subject ward, protected person, or decedent.” There is no reference to a trustee. Rule 33(D) specifically states: “No compensation for services to a fiduciary shall be allowed unless the fiduciary is…..” The term “fiduciary” is defined under ARS 1201(18) to include trustees. Are trustees intended to be exempt from Rule 33(D)?
    3.The comments to the rule state that it applies only if court approval of fees is requested; thus, some would argue a friend can still serve. What friend would serve and charge a fee knowing that court approval would be required and the fee not approved if an interested party files a fee objection? That would be a significant risk for a friend to take. The risk and liability for a fiduciary is already significant—this rule is potentially adding more. For many people it effectively eliminates the use of a friend as a fiduciary.
    4.This rule favors the wealthy. If you have a wealthy friend or one who can survive the hours of work necessary to help you without being compensated, then you can appoint a friend. If you have a friend who needs to be compensated in order to spend all the many hours involved, the friend may not be willing to serve because of the risk involved.
    5.So, if you don’t have a wealthy friend, your choices are: family; professional fiduciary or financial institution. And what if you have no family? Or you have no family you can trust? Then your choices are professionals. Over the years I have had a significant number of estate planning clients in this position who refused to name a professional or corporate fiduciary of any kind for a variety of reasons. And if this rule is approved, what are these clients to do?
    6.Why treat “friends” so differently? Do friends who serve as fiduciary create more problems in court cases than other fiduciaries? Over the years I have seen serious problems occur with every kind of fiduciary.
    7.This rule favors professional fiduciaries. I am not against the use of a professional or corporate fiduciary. In fact, I have served as one, greatly appreciate the service they provide, and talk to clients about using them. However, each individual should be allowed the choice to select the person/entity to provide assistance during some of the most critical times of life.
    8.This rule is not procedural; it is substantive. The court has the responsibility of determining whether the fee is reasonable and setting standards and requirements for approval, but as far as I know there is no provision in the Arizona statutes that states a certain category of people cannot serve and be compensated. ARS 14-3719 states: “A personal representative is entitled to reasonable compensation for his services.” There are similar provisions in the statutes for guardian and conservator. The last version of the Arizona Trust Code that I saw also included a similar provision for a trustee based on the reasonable compensation standard.

    In summary, I respectfully request the removal of 33(D) from the rules.
    John Paul Parks
    Posts:

    --
    20 May 2008 05:22 PM
    John Paul Parks
    14362 N. Frank Lloyd Wright Blvd, Ste. 1000
    Scottsdale, AZ 9527-8847
    480-477-6626
    ArizCalFlaLaw@msn.com


    “Unless specifically provided to the contrary in this title or unless inconsistent with its provisions, the Rules of Civil Procedure including the rules concerning vacation of orders and appellate review govern formal proceedings under this title.” A.R.S. § 14-1304.

    With all due respect, does this statute in any way limit the Supreme Court’s ability to adopt the proposed rules? If the Court has the authority to supersede the statute, that should be done expressly in order to minimize any possible confusion.

    The proposed rules would change the practice currently followed in several counties of the state. To allow judicial officers, lawyers, and members of the public sufficient time to become familiar with them and to identify any further need for change or correction, and to permit the various counties to make necessary and orderly revisions in their local rules, the effective date of the rules should be delayed at least until January 1, 2010. In the time between the date of adoption and the effective date, educational seminars should be given throughout the state and other forms of public comment should be solicited.

    In view of the apparently imminent adoption of the Arizona Trust Code, the proposed rules should be reviewed for consistency with that legislation. Statutory references contained in the proposed rules should also be checked.

    Proposed Rule 4(B)(1)(a) states that “in a probate case relating to a decedent’s estate, either the decedent’s estate or the personal representative of the decedent’s estate, or both, shall be a party to the civil action . . .”

    Proposed Rule 4(B)(1)(c) states that “in a probate case relating to the internal affairs of a trust, the trust or the trustee of the trust shall be a party to the civil action.”

    Under traditional legal concepts, neither an estate nor a trust is a legal entity and therefore should not be named as a party to litigation.

    A trust “is a fiduciary relationship with respect to property, arising from a manifestation of intention to create that relationship and subjecting the person who holds title to the property to duties to deal with it for the benefit of charity or for one or more persons, at least one of whom is not the sole trustee.” Restatement (Third) of Trusts § 2. The person who holds title to the property, and who should be made a party to the litigation, is the trustee.

    “An executor during the period of administration, holds the property of the estate as the trustee and the proper representative of all parties interested therein, and it is his duty to protect the assets of the estate. Therefore, where the interests of the estate are involved, the executor may sue and be sued . . .” In re McCabe’s Estate, 11 Ariz. App. 555, 556, 466 P.2d 774, 775 (Div. 2 1970) (internal citations omitted). See also A.R.S. § 14-3711 (“a personal representative has the same power over the title to property of the estate that an absolute owner would have, in trust however, for the benefit of creditors and others interested in the estate”).

    As indicated in the Comment to Section 2 of the Restatement, there may be a modern trend to regard a trust as an entity, at least for some purposes. In my view, most respectfully, that is a question of substantive law which should not be resolved through a rule of procedure.

    Proposed Rule 28(B) states that “nless inconsistent with these rules, Rules 26 through 37(f), Arizona Rules of Civil Procedure, shall apply to discovery and disclosure in contested probate proceedings.”

    The rules should explicitly state, however, that the court, in order to conserve the assets of the estate, has broad discretion to limit the scope and the place and manner of discovery and disclosure, and may assess the costs of discovery and disclosure against the person seeking it or against one or more beneficiaries of the estate or trust or against the ward or protected person, in such proportions as the court determines, considering, among other things, the benefit derived therefrom.

    I believe this is particularly important in smaller estates with unreasonably contentious beneficiaries.

    In a formal proceeding that is governed by the Arizona Rules of Civil Procedure, the rules on the taking of defaults should also be applicable.

    Form 1 contains an error.

    Paragraph 10 of Form 1 provides that if the personal representative elects not to file the inventory with the court, he is required to mail it to “all heirs, devisees, and other interested persons who request it.”

    This is contrary to A.R.S. § 14-3706(B) and to Proposed Rule 31(A)(1)(b). If the personal representative 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(B). There is no statutory requirement to mail the inventory to heirs and devisees.

    “Heirs” are the persons who would have taken the estate in the absence of a will. See A.R.S. § 14-1201(23). In a testate estate, the heirs, as such, have no interest in the estate, and there should be no requirement to provide them with a copy of the inventory.

    Proposed Rule 31(A)(1)(b) states the matter correctly.

    Paragraph 7 of Form 1 should modified so that it will not be necessary to publish a Notice to Creditors in a tardy probate. In a tardy probate, “[c]laims other than expenses of administration shall not be presented against the estate,” A.R.S. § 14-3108(4), so there is no reason to publish a Notice to Creditors in a tardy probate. Publishing a Notice to Creditors after the claims period has expired is an unnecessary expense and may also have the undesirable effect of reopening the claims period. See A.R.S. § 14-3803(A)(1).

    Paragraph 6 of Form 1 should be modified to permit the use of an unsworn declaration under penalty of perjury as well as a notarized statement. Each method of verification serves the same purpose, and it may not be convenient for a person signing a document to secure the services of a notary. In addition, some notaries charge for their services, and expenses should be kept down when possible.

    Proposed Rule 10(A)(1) requires the attorney to keep the court advised of the status of each case. How often are the status reports required to be filed? Is each county permitted to adopt its own rule on how often a status report must be filed? If so, that will detract from the statewide uniformity that the proposed rules are attempting to achieve. I am also concerned that the requirement will increase the expense of administering the estate. With all due respect, whether an inventory (or notice of mailing thereof), an accounting, a report, or some other document has been filed or has not been filed can be determined by inspecting the court file. If a deficiency is noted, appropriate action can then be taken. What purpose does a status report serve?
    lkoschney
    Posts:

    --
    21 May 2008 01:40 PM
    R-07-0012 Arizona Rules of Probate Procedure

    Ms. Shari Tomlinson, Chairperson
    On behalf of the Full Fiduciary Board
    Certification and Licensing Division
    Arizona Supreme Court
    1501 W. Washington
    Suite 104
    Phoenix, AZ 85007
    602-452-3888 (phone)
    602-452-3378 (fax)
    Attachments
    ecrowley
    Posts:

    --
    21 Jul 2008 04:13 PM
    Petitioner:
    Vice Chief Justice Rebecca White Berch, Chair
    Probate Rules Committee
    1501 W. Washington St., Phoenix, Az. 85007
    602-452-3535

    Petitioner's Reply to Comments and Report on Changes to Proposed Arizona Rules of Probabe Procedure and
    Revised Proposal for Arizona Rules of Probate Procedure
    Attachments


    ---