The probate courts in Arizona handle three primary types of cases: (1) guardianship / conservatorship proceedings to protect individuals and their property when they are unable to do so themselves; (2) supervised or contested proceedings involving trusts, and (3) probate proceedings to administer the estate of a deceased person. This article will summarize what a person should expect from a lawyer who is going to advise individuals with regard to item #3 above in the administration of the estate of a deceased person.
A probate lawyer in Arizona can represent a person in either a fiduciary capacity (i.e. advising the person responsible for managing the property or making decisions for the benefit of another person) or in a beneficial capacity (i.e. representing the interests of the individual who is designated to receive property) or as a claimant against an estate or trust (i.e. seeking to recover property from the trust or estate of the deceased person).
1 – Fiduciary capacity [i.e. trustee or personal representative (a.k.a. executor)].
The fiduciary capacity in the administration of a deceased person’s estate is called the personal representative (a.k.a. executor). The Arizona probate lawyer advises the personal representative with regard to their fiduciary duties of loyalty, care, and impartiality. In layman’s terms, this means that the probate lawyer must advise the personal representative so that (1) the personal representative does not take positions that are in conflict with or adverse to the estate, (2) the personal representative fulfills their duties properly and timely, and (3) the personal representative does not treat the beneficiaries unfairly.
For an experienced Arizona probate lawyer, the proceeding to administer the estate of a deceased person is a relatively routine matter. The Arizona probate lawyer protects the personal representative from liability with regard to three primary potential claimants: (1) taxing authorities, (2) creditors, and (3) heirs or beneficiaries.
First, most have heard the axiom that the only sure things in life are death and taxes. However, taxes continue even after a person has passed away. The Arizona probate lawyer identifies whether there will be an “estate tax” assessed on the property that the deceased person is passing on to their loved ones. An estate also must observe a requirement to file its own income tax return in most cases. Second, creditors of the estate will want to be satisfied. It is critical to follow Arizona probate law to avoid the possibility that the fiduciary could become personally liable for the claims of creditors. Third, the heirs and beneficiaries are entitled to evaluate the propriety of each transaction that is entered into by the fiduciary, and they can hold the fiduciary personally liable for improper transactions.
2 – Beneficial capacity (i.e. heir or beneficiary).
A beneficiary of an estate does not always need a probate lawyer to represent his or her interests, but it is a wise practice to consult with an attorney about the beneficiary’s rights, and in some cases, to keep the lawyer retained for purposes of reviewing the correspondence and work performed by the fiduciary and the fiduciary’s counsel.
In cases where there are “red flags” about the possibility of misappropriation or abuse by a fiduciary, transactions involving conflicts or interest of the fiduciary, or a significant risk of loss or waste, then beneficiaries should engage a lawyer to protect the estate or trust and the interest of the beneficiary.
3 – Claimant against an estate or trust.
Some of the more common claims against an estate or trust include (1) taxes, (2) rights of a surviving spouse or children, (3) medical bills, and (4) credit card bills. However, there is a variety of other claims that can be brought against an estate or trust. Many claims survive the death of an individual. Individuals should consult with an Arizona probate lawyer if they believe they are owed money, or if they believe that a deceased person may have been responsible for harm or damages.
Written by Scottsdale Estate Litigation Attorney Mark Andersen