Overview

While it should be a last resort, sometimes the only way to protect yourself as a personal representative (this is the name given to the person administering an estate in Arizona; people often refer to this position as an executor), trustee, heir, devisee, beneficiary, or interested family member, is to file an action with the probate court.  Probate matters can be very stressful on the parties because of the emotional involvement of everyone.  In most cases, the parties have not had time to grieve the loss of their loved one and are immediately thrust into battle before the court.  The reasons to assert your rights can stem from your parents not placing a responsible child in control of the estate, a poorly drafted will or trust, a family member wrongfully believing they are entitled to more than what the will or trust states, or mistrust among family members.  Either way, if you fail to act you could lose what your loved-one wanted you to have.

 

Bernard Justice Johnsen Law's practice focuses on estate and trust matters involved in probate court.  My years of experience lend me the knowledge of what works and what doesn’t in court.  Too often, the same types of cases are litigated and I will not need to reinvent the wheel.  I will discuss with you the options in resolving your matter.  While it is necessary to build a strong case and prepare as if you were going to trial, there are other options in finding a resolution that works for you.  Your case will be handled with compassion and confidence.  While most cases appear to be about power and money, Bernard can help you recognize and understand the underlying issues and costs associated with litigation.  You will be provided with a client portal and will have twenty-four-hour access to your case calendar, documents and communications.  You should always know the status of your matter.  And, Bernard is available by email during non-business hours.

 

It is extremely important to speak with an attorney as there are time limitations for contests and claims.  Also, evidence and assets must be preserved.  Generally, it is best to seek a settlement that is right for you, but to get that settlement, you must prepare as if your matter will go to trial.  It is imperative that you take the necessary steps to prove your position as quickly as possible.

 

Below are some of the most common causes for litigation in probate court concerning trusts and estates.  I have briefly described each and will represent you whether you are petitioning the court to assert your rights or defending against someone bringing an action against you.  The list is not exhaustive. Should you have any questions about these matters or something else, feel free to call me for a free initial consultation.

 

Contesting a Will, Trust, or other Governing Instrument

When contesting a will, codicil, deed, or other “governing instrument”, you must first determine if the document is valid on its “face”.  This means you should review the document and determine if it meets the requirements set by the law regarding its creation.  Other than trusts, the documents must be signed by the person creating the document and it must be signed by additional persons as witnesses or a Notary Public.  If these documents are determined to not have been executed properly, they are not valid.  This is much easier and cost-efficient way to invalidating the document.

 

Wills must be in writing, signed by the person who died (in Arizona that person is called testator or testatrix – depending on gender), and signed by two witnesses.  Also, a testator/testatrix can still draft a valid will without the two-witness requirement, if the main provisions of the will are in the handwriting of the testator/testatrix and signed by the testator/testatrix.  It should be noted that this is not as clear-cut as one might think.  If you are curious about the validity of the handwritten will, you should call me.  I have worked with handwriting experts to prove that a will was not actually signed by the testator/testatrix.  I have seen random lists with incorrect legal terms written on it and claimed to be a will.  Also, I have seen wills signed with an “X” – which is fine if that is how the testator/testatrix signed things.  Handwritten wills can be very confusing and should be reviewed by an attorney.

 

To properly execute a deed, it must be signed by the grantor (the person transferring title) and notarized.  If the deed was only witnessed, it is not a valid deed.

 

Lack of Capacity and Undue Influence

Besides contesting the validity of an instrument due to execution defects, there are many other situations that can result in a will, codicil, trust, trust amendment, deed, or other governing instrument to be invalid.  Lack of capacity and undue influence are two examples and both occur with frequency in Arizona.  Lack of capacity means that a person signed a governing instrument (will, trust, deed, etc.) and did not have the mental capability to understand what he or she was doing when they executed the document.

 

The threshold for capacity to enter into a will is much lower than what people think.  To determine whether a person had the capacity to create a valid will, the test is: (1) Did he or she, at the time the will was created, understand that he or she was creating a document that will distribute his or her property after death? (2) Did he or she understand what the type of property he or she owned? (3) Did he or she understand who would normally receive his or her property after death (usually, the children) and understand how the will affected that general assumption?  Further, even if a person who created a will had been declared incompetent and had a guardian appointed to him or her at the time of the will's execution, it does not necessarily stop him or her from having the required mental capacity to execute a valid will.

Undue influence is when a person exercises influence over a testator executing a will when that someone – through his power over the mind of the testator – makes the testator’s desires conform to his own so that the will does not conform to the wishes of the testator, but to those of the person exercising the undue influence.  The court uses eight factors to determine undue influence and there is a presumption that a testator was unduly influenced when one who occupies a confidential relationship to the testator is active in procuring the execution of the will and is a principal beneficiary.

 

The issue with these types of contests is that the best person to answer the above-stated questions has died.  Among other things, the outcome of these types of cases is usually proven by medical records, previous estate plans, testimony from the attorney who drafted the documents, and testimony from expert witnesses.  Sometimes medical records do support your position and sometimes they don’t.  Also, an attorney who drafted the estate plans for the person who died is almost always going to say that the person wasn’t being influenced because the attorney should have taken steps to prevent it.  Further, both sides will probably find expert witnesses to support their position.  These matters require significant work.  Should you have any questions, call me for a free consultation.

 

Contesting the Appointment of the Personal Representative (Executor) of an Estate

When someone is appointed as the personal representative of an estate or seeks appointment as personal representative, notice must be given to the spouse, children, heirs, devisees, and other interested persons.  The person seeking appointment must state to the court why they have priority for appointment.  The appointment is contested when someone objects to the appointment by filing a formal petition/objection with the court.  The court will then determine who has priority to serve as personal representative – whether it be a person nominated in a will, a spouse, an heir or devisee of the estate.  Then the court will look at the evidence as to whether that person is fit to serve.  Both sides will present evidence as to why someone should or shouldn’t be the personal representative.  If a party does not believe he or she will be successful in contesting the appointment, under certain circumstances, he or she can petition the court to supervise the administration.  That way, the court can keep an on eye on things to make sure the personal representative is acting properly.  However, it will increase the costs of administering the estate. Should you have any questions, call me for a free consultation.

 

Removing a Personal Representative (Executor) or Trustee

The personal representative is usually nominated in a will and either appointed by the probate registrar or by the court.  The personal representative is a fiduciary and must look out for the interests of the beneficiaries and creditors of the estate.  Title 14, Chapter 3, Article 7 of the Arizona Revised Statutes govern the duties and powers of a personal representative.  A personal representative can and should be removed if he or she has violated their duties.

 

If a personal representative has violated his or her duties to the estate and its beneficiaries, the personal representative can be removed if: (1) it is in the best interest of the estate; (2) the personal representative lied in the proceedings leading to his or her appointment; (3) it is shown that the personal representative has disregarded an order of the court, has become incapable of discharging the duties of that office, has mismanaged the estate or has failed to perform his or her duties; or (4) the personal representative has disregarded the reasonable written wishes of the decedent regarding the disposition of the decedent's remains.

 

Trustees are persons (or entities) who hold property of another in trust.  The property is usually held for the benefit of the trustor until the trustor dies and then for the benefit of the beneficiaries.  The trustee’s duties are governed by the trust instrument itself and Arizona law.   A trustee can be removed if: (1) the trustee has committed a serious breach of trust; (2) there are co-trustees who cannot get along and it is affecting the administration of the trust; (3) because of unfitness, unwillingness or persistent failure of the trustee to administer the trust for the benefit of the beneficiaries, the court determines that removal of the trustee best serves the interests of the beneficiaries; (4) circumstances have changed or the qualified beneficiaries want the trustee removed; or (5) the court finds that removal of the trustee best serves the interests of all of the beneficiaries and is consistent with the trust’s purpose and a suitable successor trustee is available.  Should you have questions regarding the removal of a trustee or personal representative, call me for a free consultation.

 

Protecting Your Rights as a Beneficiary

If you are the beneficiary of an estate or a trust, you have rights.  Arizona law, the will and the trust set forth your rights.  Often times, the trustee or personal representative is unwilling to share information with you that you are entitled to.  You are entitled to review a will that gives you money and you are entitled to review the portions of a trust that you are a beneficiary of.  However, you should hire an attorney to review your rights before ever filing a cause of action against a personal representative or trustee.  Most wills and trusts have “No Contest Clauses” which are sometimes called an “In Terrorem Clause”.  If you file something in court, it is almost guaranteed that you will face a counterclaim of violating this clause.  I have helped clients defend and assert this clause which can have serious consequences.

 

No Contest Clauses

No Contest Clauses (also known as In Terrorem Clauses) are provisions in a will or trust that state if any beneficiary attempts to contest the will or trust through the court, he or she will be completely disinherited.  These clauses are very powerful tools and must be respected as the consequences of violating these provisions can be catastrophic.  If you are thinking about bringing any litigation that pertains to an estate or trust, it is important to discuss the matter with an attorney.  Even if you are certain that you are not contesting the will or trust, you probably are.  For example, if you are certain the personal representative is stealing from the estate, asking the court to remove him or her from office is a violation of the clause if he or she was appointed by the will (or trust).  However, you still can seek his or her removal if you have probable cause to bring your action.  Remember, probable cause for the police on television is defined differently in probate court.  If you have questions about protecting your rights as a beneficiary of a will or trust, call me for a free consultation.

 

Claims Against an Estate or Trust

Whether defending or making a claim against an estate (or trust), it is important to seek legal advice.  There is a time and manner for presenting claims.  If a claim is not properly submitted within a certain time, it can be lost forever.  Claims can be brought for many reasons.  I helped clients both assert and defend claims.  Many factors must be considered when finding a resolution to the claim such as:  is there any documentation supporting the claim or was it verbal?  Does the estate (or trust) even have enough money to pay the claim?  Has the time to present the claim passed?  Is the cost of fighting the claim more than what will be received?  If you have questions about making or defending a claim against an estate or trust, call me for a free consultation.

 

Attorney’s Fees and Costs

The general rule in Arizona is that each party is responsible for its own attorney’s fees.  However, in probate court, the personal representative’s fees are paid for by the estate and the trustee’s fees are paid for by the trust unless there has been fraud or wrong-doing by the personal representative or trustee.  If you are either one of those parties, you have a responsibility to make intelligent choices and way the cost-benefit of incurring court battle.  Otherwise, you may be personally responsible for the other sides attorney’s fees.

 

If you are suing the personal representative or trustee, there are certain circumstances when you are entitled to fees.  If you protected the estate or trust, or the “common fund,” and that protection benefitted others, you may be awarded your fees.  Additionally, Arizona law allows for the award of fees in certain circumstances, but generally, it is at the discretion of the court.  

 

Exploitation of a Vulnerable Adult

Exploitation of a vulnerable adult claims are frequently instigated in probate matters.  A vulnerable adult is a person at least 18 years-old and unable to protect themselves from others because they suffer from a mental or physical impairment.  A vulnerable adult has been exploited if someone has improperly used a vulnerable adult or his resources for another's profit or advantage by a person who is in a position of trust and confidence.

 

A vulnerable adult is often exploited by those closest to him or her such as a family member, caretaker, neighbor, or “new friend” that has come into the adult’s life to help them pay bills and take care of them.  It is often not realized that someone has been exploited until after they have died.  Once a personal representative or trustee takes control of an estate or trust they quickly understand something is not right after reviewing the deceased’s finances.  An exploitation claim can be made against the wrongdoer after the vulnerable adult has died.  However, like many claims, there is a time limitation to when the claims can be made.  If you have questions about whether a vulnerable adult has been exploited or if you are accused of exploitation, call me for a free consultation.

 

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