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Personal Representative’s Duties

Personal Representative’s Duties2017-02-28T20:17:11+00:00

by Richard Keyt, Arizona probate attorney

The person or entity appointed by an Arizona probate court to be the personal representative of the estate of a deceased person becomes a fiduciary who owes fiduciary duties for which the personal representative can be liable if breached.  The following is a short list of some of some of duties imposed by Arizona probate law on every personal representative.  The personal representative’s risk of liability from breach of duty is the number one reason people should not do a do-it-yourself Arizona probate and should hire an experienced Arizona probate lawyer to represent the personal representative.

Duties of the Personal Representative of an Arizona Probate

Liability of Personal Representative for Breach of Duty – Arizona Revised Statutes Section 14-3712 provides:

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

Fiduciary Duty & Duty to Settle Estate Per the Will – Arizona Revised Statutes Section 14-3703.A provides:

“Except as provided in the will of the decedent, a personal representative is a fiduciary who shall observe the standards of care applicable to trustees as described by Sections 14-10804 and 14-10806 and the duties of accounting applicable to trustees as provided in Section 14-10813, subsection C. A personal representative is under a duty to settle and distribute the estate of the decedent in accordance with the terms of any probated and effective will and this title, and as expeditiously and efficiently as is consistent with the best interests of the estate. The personal representative shall use the authority conferred by this title, the terms of the will, if any, and any order in proceedings to which the personal representative is a party for the best interests of successors to the estate.”

Duty to Inform Heirs & Devisees – Arizona Revised Statutes Section 14-3705 provides:

“Not later than thirty days after appointment every personal representative, except any special administrator, shall give information of the appointment to the heirs and devisees, including, if there has been no formal testacy proceeding and if the personal representative was appointed on the assumption that the decedent died intestate, the devisees in any will mentioned in the application for appointment of a personal representative. The information shall be delivered or sent by first class mail to each of the heirs and devisees whose address is reasonably available to the personal representative. If appointment is made in a formal proceeding, information under this section need not be given to persons given notice of the formal proceeding. The duty does not extend to require information to persons who have been adjudicated in a prior formal testacy proceeding to have no interest in the estate. The information shall include the name and address of the personal representative, indicate that it is being sent to persons who have or may have some interest in the estate being administered, indicate whether a bond has been filed and describe the court where papers relating to the estate are on file. The personal representative’s failure to give this information is a breach of the personal representative’s duty to the persons concerned but does not affect the validity of the appointment or the personal representative’s powers or other duties. A personal representative may inform other persons of the appointment by delivery or first class mail. The personal representative shall comply with the provisions of title 43, chapter 13.”

Duty to Prepare & File an Inventory & Appraisement – Arizona Revised Statutes Section 14-3706 provides:

“A.  Within ninety days after his appointment, a personal representative, who is not a special administrator or a successor to another representative who has previously discharged this duty, shall prepare an inventory of property owned by the decedent at the time of his death, listing it with reasonable detail, and indicating as to each listed item, its fair market value as of the date of the decedent’s death, its nature as community or separate property and the type and amount of any encumbrance that may exist with reference to any item.

B. The personal representative may file the original of the inventory with the court and send a copy of the inventory only to interested persons who request it; or, if he elects not to file the inventory with the court, he must deliver or mail a copy of the inventory to each of the heirs in an intestate estate, or to each of the devisees if a will has been probated, and to any other interested persons who request it.”

Duty to Create & File a Supplement Inventory – Arizona Revised Statutes Section 14-3708 provides:

“If any property not included in the original inventory comes to the knowledge of a personal representative or if the personal representative learns that the value or description indicated in the original inventory for any item is erroneous or misleading, he shall make a supplementary inventory or appraisement showing the market value as of the date of the decedent’s death of the new item or the revised market value or descriptions, and the appraisers or other data relied upon, if any, and file it with the court if the original inventory was filed, or furnish copies thereof or information thereof to persons interested in the new information.”

Duty to Take Possession of the Estate’s Assets & Discover Concealed Assets – Arizona Revised Statutes Section 14-3709 provides:

“A. Except as otherwise provided by a decedent’s Will, every personal representative has a right to, and shall take possession or control of, the decedent’s property, except that any real property or tangible personal property may be left with or surrendered to the person presumptively entitled to it unless or until, in the judgment of the personal representative, possession of the property by the personal representative will be necessary for purposes of administration. The request by a personal representative for delivery of any property possessed by an heir or devisee is conclusive evidence, in any action against the heir or devisee for possession of the property, that the possession of the property by the personal representative is necessary for purposes of administration. The personal representative shall pay taxes on, and take all steps reasonably necessary for the management, protection and preservation of, the estate in the personal representative’s possession. The personal representative may maintain an action to recover possession of property or to determine its title.

B. If the personal representative . . . complains to the court, on oath, that a person is suspected of having concealed, embezzled, conveyed or disposed of any property of a decedent, or possesses or has knowledge of deeds, bonds, contracts or other writings which contain evidence of or tend to disclose the right, interest or claim of a decedent to any property, or the Will of a decedent, the court may cite that person to appear before the court and may examine that person on oath on the complaint. If that person is not in the county where letters have been issued, the person may be cited and examined before the court in the county where the person is found or the court issuing the citation. If the person appears and the court determines that the claim is unfounded, the court shall allow that person necessary expenses out of the estate.

C. If the person cited as provided by subsection B refuses to appear and submit to an examination, or to answer questions relevant to the complaint, the court may commit that person to jail until the person submits to the order of the court or is discharged according to law.

D. If on examination or from other evidence adduced at the hearing it appears that a person has concealed, embezzled, conveyed or disposed of any property of a decedent, or possesses or has knowledge of deeds, bonds, contracts or other writings tending to disclose the right, interest or claim of a decedent to any property, or the will of a decedent, the court may order that person to turn over the documents or disclose knowledge to the personal representative and may commit the person cited to jail until the order is complied with or the person is discharged according to law. The examination shall be reduced to writing and filed in court. The order for the disclosure made on this examination is prima facie evidence of the right of the personal representative to the property in an action brought for recovery of that property, and a judgment shall be for double the value of the property, or for return of the property and damages in addition to the property equal to the value of the property. The court may also award reasonable attorney fees and costs.”