Arizona Elder Lawyer

Current Superior Court Filing Fees For Maricopa County Arizona Probate Case Matters

Arizona Superior Court filing fees are mandated by statute.  Generally, the filing fee for a Petition in a Probate Case is $251.00 in Maricopa County.  A certified copy of any court record costs $26.00.  A charge of $26.00 will be assessed to seal a court file or to re-open a sealed court file.

The specific services where a fee assessment is $251.00 include the following:

• Petition in a formal testacy or appointment
• Application for informal probate or informal appointment
• Petition for supervised administration
• Petition to appoint guardian
• Petition to appoint conservator or make protective order
• Single estate application or petition under Chapter 3, Title 14 (§14-3938)
• Opposing petition in testacy or appointment proceedings or appointment of guardianship/conservatorship
• Petition for transfer of real property by affidavit (A.R.S.§14-3971(F))

 A person who opposes a contested petition and has not paid a filing fee in the matter is assessed $186.00.

The current fee for a court investigation is $400.00.  A fee of $300.00 is assessed if the court accountant is required to act.  Any post-judgment activities in Maricopa County Probate Cases will require a fee of $86.00.

Arizona Probate Non-Appearance Hearings

Petitions in Arizona Probate Cases may be scheduled by the Court as Non-Appearance Hearings.  This is allowed if testimony is support of the Petition is not required.  However, Arizona Probate Non-Appearance Hearings are scheduled for a specific time on a specific date in the event that an interested party wishes to appear for some reason.

Generally, if a Petition in Arizona Probate is set for a Non-Appearance Hearing, no-one needs to appear at the hearing.  However, many Arizona Probate Attorneys will still appear, either telephonically or in-person.  If a problem arises at the Hearing, the Arizona Probate Attorney may be able to fully address the issue.  Moreover, the Probate Attorney may be able to receive a Certified Copy of the Court Order immediately upon the Hearing ending.

A person or other interested party who has received Notice of a Non-Appearance Probate Case Hearing may appear at a Non-Appearance hearing for the purpose of objecting to the relief requested within the Petition.  The interested person must notify the court of his presence and objection and must pay an appearance fee at that time if that objecting person has not done so already.  The appearance fee may be a few hundred dollars.

If an interested party objects to the relief requested within the Petition, the Court may then set the matter over as a contested Probate matter.  The objecting person would be required to know, follow and apply Arizona statutes, case law, Arizona Rules of Probate Procedure, Arizona Rules of Civil Procedure, and any Local Court Rules in order to proceed.  If the objecting party fails to do so, that interested party may be subject to penalties.  Generally, it is best to consult with an Arizona Probate Attorney prior to the first Non-Appearance Probate Case Hearing, or the objector may be subjecting himself to more problems than it is worth to him.

Service of Court Papers in Arizona Probate Cases

Occasionally the Arizona Rules of Probate Procedure require that Notice of a Hearing or other document be served personally.  However, in many circumstances documents related to an Arizona Probate Case only need to be served by mail. 

Generally, a Notice for any Probate Hearing shall state the title of the matter to be heard, the date, time and place of the Hearing, the name of the judicial officer before whom the matter is set for hearing, and whether the hearing is set as an appearance hearing or non-appearance hearing.

Unless the court has ordered otherwise, a Notice of Hearing for a Probate Case is generally accompanied by the petition or motion that is the subject of the hearing.  The Arizona requirement for Notice accompanied by the underlying document is to ensure that interested persons are afforded the opportunity to protect their due process rights.

If you have received a Notice of Hearing for a Probate Case, either with or without the underlying document related to the Hearing, and you are unsure what to do or if your rights might be affected, it is best to immediately consult with an Arizona Probate Attorney.  If you wait, you may permanently waive some of your rights.

Arizona Definition of Probate Case

The Arizona Legislature enacted Rules of Probate Procedure effective January 1, 2009.  The Arizona definition of a Probate Case is stated within these Rules.  Specifically, Rule 2.O includes nine categories. 

An Arizona Probate Case is a court case originally commenced for one or more of the following purposes: 1) to administer a decedent’s estate, 2) to appoint a guardian for an incapacitated person or minor, 3) to appoint a conservator or request some other protective order, 4) to designate a successor custodian, 5) to designate a custodial trustee, 6) to request a judicial order relating to the internal affairs of a trust, 7) to challenge or enforce the decision of one authorized to make health care decisions for another person, 8) to obtain a declaratory judgment with respect to the construction or interpretation of a will, trust, or power of attorney, or 9) to obtain a declaratory judgment under A.R.S. Section 12-1834.   

While a Probate Case is limited in definition, it can be broad in scope.  However, an Arizona Probate Case does not include matters which are within the jurisdiction of civil actions, juvenile proceedings or family law proceedings, even if the civil action, juvenile proceeding or family law proceeding has been filed with, within or consolidated with a Probate Case.

If you suspect that you have a legal issue which may fall under the scope of a Probate Case in Arizona, it is best to consult an attorney who handles Probate Cases in the county where the issue has arisen. It is generally wiser and can be less expensive to consult with your Arizona probate attorney prior to making any decisions that may affect the matters which would be subject to Probate.

An Arizona Guardian Must Handle Her Ward’s Assets Properly

When a person agrees to become someone else’s legal Guardian in Arizona, she agrees to abide by certain known standards.  She is specifically bound to care for and protect her ward’s personal effects.  A Guardian must apply any monies she receives to her ward’s current support, care and educational needs while conserving any excess funds not so spent for the future needs of her ward.

An Arizona Guardian may never commingle her ward’s funds with her own.  A Guardian must maintain her ward’s funds in a separate account which is apart from her own account and identified as belonging to her ward.  Additionally, a Guardian must maintain records of all of the ward’s property received and expended during the period of the Guardianship.

An Arizona Guardian should regularly seek the advice of her knowledgeable probate attorney in order to ensure that she is handling the financial aspects of being a Guardian properly.

Can An Arizona Guardian Control Her Ward’s Money?

In Arizona, a Guardian is allowed to control small amounts of her ward’s money.  Generally, if a ward receives less than $10,000 per year from all sources, does not accumulate funds exceeding that amount and does not own real property, a Guardian can control her ward’s assets.  However, if more than these amounts come into the Guardian’s possession or become accumulated, the Guardian must petition the Court to become appointed her ward’s conservator as well.

An Arizona Guardian should check in with her probate attorney whenever she has questions pertaining to the monies or other assets of her ward.  It is usually easier to avoid a problem than to deal with the aftermath.

Payment For Services As Personal Representative In Arizona

Being a Personal Representative (“PR”) takes time.  Generally an individual is not a fiduciary by trade and already has a full plate, whether it is a paid career or an unpaid one.  As a PR in Arizona, you may be entitled to a reasonable compensation.  Unlike California, Arizona law does not designate a percentage of the estate as the fees for work performed or dictate how much a PR may be paid.

Generally a Court will consider many factors when determining whether a fee is reasonable.  Such factors include actual time required to perform the services, the difficulty of the tasks involved, the skill necessary to perform the services properly, the preclusion of the PR’s ability to be otherwise employed, the results obtained for the estate, and the fee normally charged in the area for similar services.

Courts look to each set of circumstances and then apply a reasonableness standard.  A PR should consult with the Arizona probate attorney she has hired to assist her with such issues at the outset of the administration.  The Arizona probate attorney should advise the PR in keeping proper records as well as the duties the PR should consider delegating to others with more expertise.

Does a Personal Representative Have To Sell The Estate Property Prior To Distribution To The Beneficiaries Or Heirs?

A Personal Representative must act prudently and in accord with the law and a Decedent’s Will.  If the Will is silent, the debts of the Estate have been paid, and certain remaining assets are in the form of stocks or bonds, then it may make sense to distribute these assets in kind.  In plain English, this means without selling them.  That way each Beneficiary has control over whether or not to sell these assets, when, and at what price.

However, if the asset is residential real estate, it may not be prudent to distribute this asset in kind.  For instance, if there are three siblings who are to share equally under the Will, a Personal Administrator must take into account whether or not she would be causing future headaches for these siblings by making them co-owners with each other.  Would they be able to agree to pay their share of the taxes, insurance and utilities?  Could they agree regarding maintenance or upkeep?  What if one sibling wants to paint the interior of the house bright colors, one wants to paint the interior in white colors, and the third sees no reason to paint, ever.

A Personal Representative may deem the sale of a residential real estate asset to be the most prudent decision, even in a down market.  If the future litigation could have been foreseeable and avoided, then a Beneficiary may later claim that the Personal Representative breached some fiduciary duties.  Even if the claim is frivolous, a Personal Representative may find herself defending her past actions and using her own funds for her defense.  It is wise for a Personal Representative to seek the advice of the probate attorney she hired to assist her with the administration of the Estate prior to distributing the assets of the Estate.

Duties of a Personal Representative In Arizona

The Arizona Rules of Probate Procedure are intended to be simple, brief, and cost-efficient.  A Personal Representative of an estate may be required to acknowledge by signing a Court Order that she is subject to the power of the Court.  This requirement depends on the facts and circumstances of the estate.

In Arizona, a Personal Representative is required to provide sufficient information to the beneficiaries so that they are able to protect their interests.  The Court may hold a Personal Representative personally liable and responsible for any losses or damage to the estate which result from a violation of the Personal Representative’s duties.  These have to be real losses or damage, not just a bad result from a reasonable decision made in the administration of her duties.

The duties of the Personal Representative are found in Chapter 3, Title 14 of the Arizona Revised Statutes.  All Personal Representatives are subject to knowing these duties and acting in accord with them.  It is usually prudent for a Personal Representative to seek the advice of a probate attorney to assist her with her duties in the administration of an estate.

Choosing a Personal Representative (aka Executor / Administrator)

            A personal representative (“PR”) is one who administrates an estate.  If you execute a will, as you should, you will designate a PR and usually one or two alternates.  If you die without a will, a court will appoint a PR to your estate for you.

            If you have a Living Trust, you will also have a will.  These are referred to as “pour-over wills.”  Assets which are not considered to be owned by your Living Trust will be assets the PR handles.

            A PR is the person who gathers assets, gives notice to creditors, pays estate expenses, determines the family’s living allowance during administration, and makes sure appropriate tax returns are timely and properly filed.  If you have an unincorporated business, your PR continues to run it, but only for four months. 

            Your PR has vast powers unless she is restricted by court order.  She can borrow funds and enter into contracts.  She has the power to sell your home and distribute or sell your personal property as she sees fit.  She deals with Social Security, the ADOT Motor Vehicle Division and the IRS.  This, of course, is not an all inclusive list. 

            Your PR has strict duties to many people and organizations.  She must prepare an inventory of assets within ninety days after appointment.  She must get appraisals for certain assets from qualified appraisers.  She must determine if the surviving spouse or any dependent children should receive an allowance in lieu of homestead and how to satisfy this.  These may not be difficult duties, but they are not necessarily intuitive.

Because of the nature of the powers and duties of a PR, you should choose someone who can make decisions and is capable of consulting with and hiring a lawyer.  Even in the simplest or smallest estates, a lawyer should be consulted.  A single misstep can be detrimental to the PR personally, as well as the estate and beneficiaries, under Arizona laws.

            The decision of who to appoint can be very difficult.  It should not be based on birth order, gender, or education.  It should be based on whether the person is responsible, respectful to others and the law, and capable of knowing when to ask for help.  Furthermore, a person who generally cuts corners or is irresponsible with her own affairs is not a good choice.  A person with general personal integrity is a great choice.

            Your PR does not need to be a family member.  It could be a friend of the family who is trustworthy and knows your family’s history and your desires.  She does not have to be someone who lives in Arizona.  But she should be able to travel to Arizona occasionally until the estate is wrapped up.

            Generally, you should only have one PR.  A corporate PR can be quite costly.  I rarely recommend a corporate PR.  They used to be used exclusively, but not anymore.  However, this is your decision.

            If you are unsure who you should choose, talk to someone you trust for advice.  Your choice affects everyone you leave behind.