John Paul Parks
14362 N. Frank Lloyd Wright Blvd, Ste. 1000
Scottsdale, AZ 9527-8847
480-477-6626 [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?