Introduction
When someone passes away, they’ll need an individual to act on their behalf in settling their estate. Arizona law refers to this individual as the personal representative, though many other states use the traditional title of executor.
Semantics aside, the personal representative has a very important job. He or she will be tasked with settling the decedent’s estate — an often complex process that involves taking an inventory of assets, selling assets for fair market value, settling debts and bills, and transferring the remaining assets to beneficiaries.
In most cases, the personal representative is named in the decedent’s will. If the decedent didn’t leave a will, the will is invalidated, or the nominated personal representative is successfully contested, the court will appoint a personal representative to handle the estate.
Who Can Be a Personal Representative in Arizona?
Generally speaking, any legally competent adult can serve as a personal representative in Arizona. It doesn’t matter if the individual is a family member or friend, nor does it make a difference if he or she is a beneficiary to the estate.
In short, the only qualifying factor is whether or not the proposed individual can handle the responsibilities of a personal representative.
Choosing a Personal Representative
Choosing a personal representative is an important decision that shouldn’t be taken lightly.
If you’re considering a personal representative for your own will, you’re generally free to name whomever you please. Most people choose their spouse or adult child, but it’s not unusual to see someone choose an extended family member, close friend, trusted advisor, or attorney.
Some people will say that you shouldn’t nominate a personal representative who is also a beneficiary. While it’s true that such a situation could create a conflict of interest, there are no laws against the practice.
Ultimately it’s about choosing a personal representative that you trust, even if he or she is a beneficiary to your estate.
Appointing a Personal Representative Without a Will
Estates that aren’t governed by a will are considered intestate. In probate court, the judge will appoint a personal representative and distribute the assets according to the state’s intestacy laws (see ARS 14-2102 and 14-2103).
In Arizona, the law dictates the following priority for appointing a personal representative:
- The surviving spouse
- Legal heirs (children, grandchildren, extended family)
- The Department of Veterans Services (if applicable)
- Creditors (45 days after the death of the decedent)
- The public fiduciary
Note that if the decedent has a trust or other non-probate assets with beneficiaries (retirement accounts, life insurance, joint bank accounts, etc.) the court will prioritize the beneficiaries when appointing a personal representative.
How Working with an Attorney Can Help
Navigating probate is a complicated process, but it doesn’t have to be. An experienced probate attorney can help you with the following executor-related actions:
- Executing your responsibilities as the personal representative
- Petitioning the court to be appointed as the personal representative
- Contesting the appointment of a personal representative
- Contesting the actions of a personal representative
FAQs About Who Can Be an Executor of an Estate
Q: Can an attorney be the executor of a will?
Yes, attorneys can serve as the executor of a will. However, due to potential conflicts of interest, it’s generally inadvisable to have the same attorney draft a will and serve as the executor.
Q: Can an executor of a will be a beneficiary?
Yes. In fact, most executors are also beneficiaries to the estate that they serve, because the executor is usually a surviving spouse or immediate family member.
Q: How do you become an executor of an estate?
When a decedent leaves a will that nominates an executor, the court will honor the request unless an interested party successfully contests the appointment. Assuming nobody contests the appointment, the judge will formally appoint the executor when he or she files a motion to open probate.
When a decedent passes away without a will, someone will need to request that the court appoint them as the personal representative. This is usually done by the same person who files the motion to open probate, often in the same petition packet (though sometimes it requires a separate motion).
Whether there’s just one person who applies to be the personal representative or several petitioners, the probate judge will consider their merits and appoint the individual who is best qualified for the position.
Q: Can a nominated executor refuse their appointment?
Yes, the nomination in the decedent’s will is non-binding. Even if the nominee agreed to serve as the executor when the will was signed, they have the right to decline when the decedent passes away.
When this occurs, the judge will either appoint the backup executor listed in the will, consider petitions from interested parties who wish to be appointed, or appoint a neutral third-party administrator.
Q: Can one executor act alone?
In most cases there is only one executor or personal representative. Some people choose to nominate a backup executor in case the first choice passes away or declines the appointment, but the backup has no authority until the nominated individual vacates the position.
Q: Can an executor of a will spend the money?
As the executor liquidates assets, he or she will gather the funds in an estate checking account. The executor is authorized to spend money from this account as it pertains to fulfilling their duties, including:
- Paying the decedent’s bills and debts
- Paying probate costs (court costs, attorney fees, etc.)
- Paying for professional services (appraisers, accountants, etc.)
The executor may also pay themselves a fair wage for their time. If a flat fee or rate isn’t specified in the will, the court will need to approve the compensation.
What to Do if You Need Help Probate in Arizona
Whether you’re an existing personal representative looking for direction or a family member who would like to be appointed, it’s best to discuss your situation with an experienced probate attorney.
For a small fee, the attorney can offer legal advice and point you in the right direction. If necessary, you can also retain the attorney’s services to represent you and guide you through the probate process.
Call our Arizona Estate Planning team at (480)467-4325 to discuss your case today.
