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Last Post 21 Jul 2008 04:13 PM by  ecrowley
R-07-0012 Arizona Rules of Probate Procedure
 64 Replies
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Author Messages

19 May 2008 08:20 PM
Benjamin Burnside
Bogutz & Gordon
3503 N. Campbell Ave., Suite 101
Tucson, AZ 85719-2007
[email protected]

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.

20 May 2008 10:03 AM
Jacqueline Frey
Frey and Frey
3120 N. Arizona Ave., Suite 103
Chandler, AZ 85225-2997
[email protected]

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

20 May 2008 05:22 PM
John Paul Parks
14362 N. Frank Lloyd Wright Blvd, Ste. 1000
Scottsdale, AZ 9527-8847
[email protected]

“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?

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)

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

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
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