What is a Personal Representative?
A “Personal Representative” is a person appointed by the probate court to manage a deceased person’s estate. Regardless of whether a Personal Representative is managing an estate with a will or without a will, referred to as an intestate estate, the personal representative has a high degree of responsibility to the estate and its creditors and beneficiaries. If the Personal Representative breaches his or her duty, he or she can be held financially responsible for the breach.
What are the Duties of a Personal Representative?
An Arizona Personal Representative in Probate has a tough job, with numerous duties. Fail to satisfy those duties and there can be severe financial consequences. Under the Arizona Revised Statutes, “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….”
1. Duty to Inform
Within 30 days of a Personal Representative being appointed to an estate, the Personal Representative, not the court, must inform the heirs and devisees (people named to receive property in the will) that he or she has been appointed and must provide other information. That information must be sent to the heirs and devisees by mail. In situations where the appointment results from a formal court proceeding, anyone who received notice of the court proceeding need not be informed of the appointment.
The information provided to heirs and devisees must include the following:
- The name and address of the personal representative.
- A statement that the information is being sent to people who have or may have an interest in the estate.
- An indication of whether a bond has been required of the Personal Representative.
- A description of where estate documents have been filed.
Failing to provide the above information to the heirs and devisees is a breach of duty and can carry a penalty. But that failure does not invalidate that person’s appointment as Personal Representative of the estate.
2. Duty to File Inventory
After notifying heirs and devisees of his or her appointment, the next deadline for a Personal Representative is to prepare an inventory of property that is owned by the decedent’s estate. An inventory is a list of items of property and a statement of the value of each item. The inventory may be filed with the court. If it is filed with the Court, the Personal Representative must still send copies to any interested person who requests
a copy. As an alternative to filing the inventory with the Court, the Personal Representative may choose not to file the inventory with the Court, instead providing copies of the inventory to all the heirs and devisees of the estate and any other interested party that requests one.
The deadline for preparation and filing of the inventory is 90 days after the Personal Representative’s appointment, but that deadline is often exceeded depending upon the complexity of the estate.
3. Duty to Update Inventory
If the Personal Representative missed any of the decedent’s property in the original inventory filed with the court (or provided to the heirs and devisees as described above) or finds out that the value of any of the property included in the inventory is incorrect, the Personal Representative has a duty to supplement the inventory, including the new items or values. As with the original inventory, the supplemental inventory may be filed with the Court or provided to all the heirs and devisees and any interested parties that request one.
4. Duty to Take Possession of Estate’s Assets
A Personal Representative has the right and duty take possession of all of a deceased person’s property, unless the decedent’s will instructs otherwise. That includes every item of personal property and real estate, even if taking possession of the property will be a burden. This is a huge responsibility. The personal representative also has the right to obtain documents and other information that may reveal other estate assets.
In cases where the property is likely to be given to another person during the probate process anyway, the Personal Representative may give the property to or leave it with that person. The right to give property to someone who likely has a right to it doesn’t apply if administration of the estate requires the Personal Representative to take possession of the property. For instance, if the estate is underwater, owing more to creditors than it has in assets, the Personal Representative may not leave a car to the person named to receive the car in the will since the car will need to be liquidated to satisfy the claims against the estate.
5. Duty to Maintain the Estate’s Property
Once the Personal Representative of an estate has taken possession of the estate’s property, he or she then has a duty to maintain the property. That includes paying taxes, taking steps needed to manage, protect and preserve the assets. For instance, if an estate owns a car, the Personal Representative has a duty to complete reasonable maintenance on the car like oil changes and, if the car is in storage, ensuring that the car is driven occasionally if that step is necessary to prevent degradation of the car that will reduce its value. And, the Personal Representative should typically arrange for and purchase insurance to protect estate property.
6. Power to Compel Anyone Possessing Estate to Turn It Over
The duties of the Personal Representative also carry significant powers to deal with and gather the estate’s property. If a Personal Representative discovers or suspects that someone possesses or unlawfully disposed of property owned by the estate, the Personal Representative can request that the court compel that person to appear. At the hearing the person suspected to possess the property will be examined under oath. If the claim that the person has property of the estate is unfounded, the estate can be made to bear that person’s costs.
If a person compelled to appear before the Court and answer about the estate’s property does not appear, they can be held in contempt of Court until they comply with the Court’s order.
If the court finds that a person “has concealed, embezzled, conveyed or disposed of” or knows where evidence is that will show the estate’s rights in property, the person responsible can be forced to turn over the property and pay damages equal to the value of the property or pay damages equal to twice the value of the property.
Learn more about a personal representative’s powers to pursue claims to recover estate property.
If you are names as a Personal Representative and need help with an estate or you believe that a Personal Representative of an estate has violated your rights or failed to live up to his or her duties under Arizona probate law, call our offices for a consultation with an experienced probate administration attorney.
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