{"id":1038,"date":"2018-03-06T21:06:30","date_gmt":"2018-03-06T21:06:30","guid":{"rendered":"https:\/\/www.jacksonwhitelaw.com\/arizona-estate-planning\/?page_id=1038"},"modified":"2022-08-24T21:13:36","modified_gmt":"2022-08-24T21:13:36","slug":"executor-not-follow-will","status":"publish","type":"post","link":"https:\/\/www.jacksonwhitelaw.com\/arizona-estate-planning\/blog\/executor-not-follow-will\/","title":{"rendered":"What To Do If Executor Does Not Follow The Will?"},"content":{"rendered":"

Introduction<\/h2>\n

In the state of Arizona, the probate process is dictated by the Uniform Probate Code (UPC) and regulated by Arizona Revised Statutes Title 14 (ARS 14<\/a>).<\/p>\n

When someone passes away, their estate is settled, distributed, and closed through probate. If the decedent has a last will and testament, the will should nominate a family member or friend to serve as their estate\u2019s executor (aka personal representative<\/a>). The executor will be tasked with handling the affairs of the estate through probate and will be personally responsible for ensuring the decedent\u2019s final wishes and instructions are carried out according to the will.<\/p>\n

How is the Executor Appointed?<\/h2>\n

Most people leave the primary copy of their last will and testament with their executor. When the testator dies (the testator is the person who wrote the will), the executor will need to submit the will to the county probate court within 30 days of the testator\u2019s passing.<\/p>\n

The executor will then submit a petition with the county probate court to open probate for the testator\u2019s estate. The petition usually asks for information on the decedent, their family, a summary of the estate\u2019s assets and liabilities, and a request for the nominated executor to be formally appointed by the court. As long as there are no contests to the will or objections to the executor, the court will usually appoint the executor without a formal hearing.<\/p>\n

What are the Executor\u2019s Responsibilities?<\/h2>\n

Once an executor has been formally appointed, they\u2019ll have 5 important responsibilities:<\/p>\n

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  1. Initiate non-probate transfers to designated beneficiaries \u2013 not all assets need to pass through probate. Any assets that have a designated third-party beneficiary listed on the account (e.g. IRA, joint tenant property, life insurance) can pass to the beneficiary automatically, outside of probate court. The executor (or any interested party, for that matter) will just need to submit a copy of the death certificate to the financial institution holding the assets, and the financial institution will usually process the transfer in 1 \u2013 2 weeks.<\/li>\n
  2. Notify creditors \u2013 the executor is required to serve notice of the probate proceedings to all of the estate\u2019s known creditors. The executor will also need to post an ad announcing the probate in the local newspaper once a week for three weeks, to notify any unknown creditors of the probate proceedings. The estate\u2019s creditors will have four months from the date of the first notice in the newspaper to submit their claims to the estate.<\/li>\n
  3. Value the assets \u2013 before the executor can start cutting checks to creditors and beneficiaries, they\u2019ll need to have an inventory of the estate\u2019s assets and its fair market value. Liquid assets like bank and brokerage accounts are easy to value with the most recent account statements, but illiquid assets like real estate, vehicles, and personal possessions may require professional appraisal.<\/li>\n
  4. Settle the liabilities \u2013 once the estate\u2019s creditors have been given at least four months to submit their claims to the estate, the executor can begin to settle the estate\u2019s liabilities. The estate will be responsible for paying all administration fees (court costs, attorney fees, appraisal fees), funeral costs, debts, taxes, and outstanding bills.<\/li>\n
  5. Distribute the remaining assets \u2013 the executor can only begin to distribute probate-assets after all of the liabilities are settled. If the estate is insolvent (meaning there are more liabilities than assets), none of the beneficiaries in the will can receive anything. As long as there are residual assets, the executor is legally required to distribute them according to the will\u2019s instructions.<\/li>\n<\/ol>\n

    The Executor\u2019s Fiduciary Duty<\/h2>\n

    Throughout the probate process, the executor has a fiduciary duty<\/a> to manage the estate\u2019s assets with the same level of care that a prudent investor would use to handle their own investments. An executor can be held liable for failing to prudently manage the estate\u2019s assets.<\/p>\n

    How Long Does it Take to Distribute an Estate?<\/h2>\n

    As long as there aren\u2019t any contests to the will or objections to the activities of the executor, probate can proceed informally with no court supervision. Informal probate<\/a> can wrap up in as little as 5 months, but most informal probate cases in Arizona take about 6 \u2013 8 months.<\/p>\n

    If there are contests or objections that require hearings, the probate process will need to proceed formally with additional court supervision. Depending on the complexity of the case and the level of court supervision that\u2019s necessary, formal probate can take up to a year or longer to conclude.<\/p>\n

    How to Contest the Actions of the Executor<\/h2>\n

    When an executor fails to follow the instructions in the decedent\u2019s will or is remiss in their responsibilities, you have the right to file a complaint against the executor. Here\u2019s how you can contest the actions of an executor:<\/p>\n

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    1. Enlist professional assistance \u2013 before taking any action, you should consult with a probate attorney. The attorney can assess the validity of your objection, help you gather the necessary evidence to support your claim, and properly file your complaint against the executor. If there is evidence of financial misconduct, your attorney may recommend hiring a forensic accountant, too.<\/li>\n
    2. Serve notice to the executor \u2013 when the executor is a family member, it\u2019s usually best to resolve the issue outside of court when possible. Draft a notice of your complaint, have a courier serve the notice to the executor, and file proof of the notice with the county court. Ideally, the executor will correct their mistake and no further action will be necessary.<\/li>\n<\/ol>\n