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Showing posts with label probate. Show all posts
Showing posts with label probate. Show all posts
Monday, September 26, 2016
Arizona's Revised Uniform Fiduciary Access to Digital Assets Act
Arizona’s Revised Uniform Fiduciary Access to Digital Assets Act, which became effective on August 8, 2016, can be found in Title 14, Chapter 13 of the Arizona Revised Statutes. Under this new law a fiduciary, as defined in 14-13102 to include a successor personal representative, conservator, agent or trustee, will have the ability to access, manage, and distribute the deceased or incapacitated person’s digital assets. The purpose of the act is to solve the problem of the inability of a fiduciary to access digital assets which include images, photos, videos, and text files, which are stored either locally on a device owned by the user, or on devices that are accessed by way of the internet, such as when a user stores information “in the cloud.” Digital assets also include social media and e-mail accounts.
Pursuant to 14-13104.A., “[a] user may use an online tool to direct the custodian to disclose to a designated recipient or not to disclose some or all of the user's digital assets, including the content of electronic communications. If the online tool allows the user to modify or delete a direction at all times, a direction regarding disclosure using an online tool overrides a contrary direction by the user in a will, trust, power of attorney or other record.” The new law makes the user’s online instructions legally enforceable and overrides any contrary provision that may exist in a user’s other estate planning documents if the online tool allows the user to modify or delete a direction at all times.
A.R.S. 14-13104.B. allows a user to give legally enforceable directions for the disposition of digital assets in a will, trust, power of attorney, or other written record “[i]f a user has not used an online tool to give direction under subsection A of this section or if the custodian has not provided an online tool.” Note this includes the content of electronic communications sent or received by the user. If the user has not provided any direction, either by using an online tool or traditional estate planning documents, the terms of service will determine whether a fiduciary may access a user’s digital assets. Finally, if the terms of service do not address accessibility by a fiduciary, the default rules in the new law apply, and they can be found in A.R.S. 14-13107, 14-13108, 14-13109, 14-13110, 14-13111, 14-13112, 14-13113, and 14-13114.
Disclaimer
Thursday, April 22, 2010
Serving as a Personal Representative in Arizona - Duties and Responsibilities
A good amount of thought and care should go into the decision of who to name as one’s personal representative, and a number of factors should be considered. The position is one of trust, and the person who serves as personal representative will shoulder a number of responsibilities as he or she is the person who will take care of a person’s affairs once they die. The person named as personal representative should be competent, responsible, and possess the ability to be objective and fair-mined. In cases where a person has already named someone as their agent in a General Durable Power of Attorney, it’s a good idea to name the same person as personal representative of their estate.
The personal representative will be named in the decedent’s Will. If the decedent died intestate (meaning he or she left no Will), then his or her spouse has the right to be named personal representative. If the decedent was not married at the time of his or her death, then any of his or her heirs is entitled to be appointed personal representative, provided that all the other heirs renounce or waive their right to be appointed personal representative.
The general duties of a personal representative are set forth in A.R.S. 14-3703. It’s important to note that a personal representative is a fiduciary who shall observe the standards of care applicable to trustees, which are set forth in the Arizona Trust Code, and include the duty to administer the trust in good faith, the duty of loyalty to the beneficiaries, the duty of impartiality, and the duty to minimize costs and expenses to be borne by the estate. A personal representative owes duties of undivided loyalty, fairness, and impartiality to the creditors and beneficiaries of the decedent’s estate. He or she must be cautious and prudent in dealing with estate assets.
Arizona law allows for both Supervised Administration and Unsupervised Administration probate procedures. During a Supervised Administration, the personal representative is not only responsible to all interested parties, but also to the Court. (Athough not responsible to the Court during an Unsupervised Administration, the personal representative has the same basic duties and responsibilities as during a Supervised Administration.)
The Court will issue an “Order to Personal Representative and Acknowledgement and Information to Heirs” setting forth the duties and responsibilities of serving as a personal representative, which include, but are not limited to, the duty to gather and control all assets that belonged to the decedent at the time of his her death and, after any valid debts and expenses are paid, the duty to distribute any remaining assets to the beneficiaries; within thirty days after appointment, the personal representative must mail notice of said appointment to the heirs and devisees whose addresses are reasonably available to him or her; within thirty days of the admission of the Will to informal probate, the personal representative must give written notice to all heirs and devisees of the admission of the Will to probate, together with a copy of the Will; heirs must be given notification that they have four months to contest the probate (by commencing a formal testacy proceeding); within ten days of appointment, mail a copy of the “Order to Personal Representative and Acknowledgement and Information to Heirs” to all the heirs and devisees of the estate, along with any other persons who have filed a demand for notice; file proof of compliance with the court; publish a notice once a week for three consecutive weeks in a newspaper of general circulation announcing the appointment as personal representative and informing creditors that their claims must be filed within a certain time period; immediately find, identify, and take possession of the estate assets and make proper arrangements to protect them; determine statutory allowances; prepare an inventory of the decedent’s probate assets and their values as of the date of death; keep detailed records of all receipts and expenses of the estate; pay valid debts and expenses; pay taxes; distribute the remaining assets; notify the court of changes of address; determine what is a reasonable compensation for serving as personal representative; and close the estate.
Disclaimer
The personal representative will be named in the decedent’s Will. If the decedent died intestate (meaning he or she left no Will), then his or her spouse has the right to be named personal representative. If the decedent was not married at the time of his or her death, then any of his or her heirs is entitled to be appointed personal representative, provided that all the other heirs renounce or waive their right to be appointed personal representative.
The general duties of a personal representative are set forth in A.R.S. 14-3703. It’s important to note that a personal representative is a fiduciary who shall observe the standards of care applicable to trustees, which are set forth in the Arizona Trust Code, and include the duty to administer the trust in good faith, the duty of loyalty to the beneficiaries, the duty of impartiality, and the duty to minimize costs and expenses to be borne by the estate. A personal representative owes duties of undivided loyalty, fairness, and impartiality to the creditors and beneficiaries of the decedent’s estate. He or she must be cautious and prudent in dealing with estate assets.
Arizona law allows for both Supervised Administration and Unsupervised Administration probate procedures. During a Supervised Administration, the personal representative is not only responsible to all interested parties, but also to the Court. (Athough not responsible to the Court during an Unsupervised Administration, the personal representative has the same basic duties and responsibilities as during a Supervised Administration.)
The Court will issue an “Order to Personal Representative and Acknowledgement and Information to Heirs” setting forth the duties and responsibilities of serving as a personal representative, which include, but are not limited to, the duty to gather and control all assets that belonged to the decedent at the time of his her death and, after any valid debts and expenses are paid, the duty to distribute any remaining assets to the beneficiaries; within thirty days after appointment, the personal representative must mail notice of said appointment to the heirs and devisees whose addresses are reasonably available to him or her; within thirty days of the admission of the Will to informal probate, the personal representative must give written notice to all heirs and devisees of the admission of the Will to probate, together with a copy of the Will; heirs must be given notification that they have four months to contest the probate (by commencing a formal testacy proceeding); within ten days of appointment, mail a copy of the “Order to Personal Representative and Acknowledgement and Information to Heirs” to all the heirs and devisees of the estate, along with any other persons who have filed a demand for notice; file proof of compliance with the court; publish a notice once a week for three consecutive weeks in a newspaper of general circulation announcing the appointment as personal representative and informing creditors that their claims must be filed within a certain time period; immediately find, identify, and take possession of the estate assets and make proper arrangements to protect them; determine statutory allowances; prepare an inventory of the decedent’s probate assets and their values as of the date of death; keep detailed records of all receipts and expenses of the estate; pay valid debts and expenses; pay taxes; distribute the remaining assets; notify the court of changes of address; determine what is a reasonable compensation for serving as personal representative; and close the estate.
Disclaimer
Thursday, February 11, 2010
Arizona Homestead Allowance, Exempt Property Allowance, and Family Allowance
Under Arizona law, if the decedent was domiciled in Arizona, the surviving spouse can claim a Homestead Allowance in the amount of $18,000. If there is no surviving spouse, each minor child and each dependent child is entitled to an equal share of the $18,000. The surviving spouse is also entitled to an Exempt Property Allowance in the amount of $7,000. If there is no surviving spouse, each minor child and each dependent child are entitled jointly to the $7,000. Finally, a surviving spouse, as well as minor and dependent children, are entitled to a Family Allowance, which is a "reasonable allowance" for maintenance during the period of administration. Similar to owning a share in community property, this protects against disinheritance by the testator since they are rights conferred by statute. In addition, because these allowances take precedence over creditors' claims except expenses of administration, they can protect the family of the deceased against creditors.
Disclaimer
Disclaimer
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