The Importance of Complying With Statutory Requirements When Providing Notice to Creditors

      

        Pursuant to A.R.S. § 14-3801, the personal representative of an estate must publish a notice to creditors once a week for three successive weeks in a newspaper of general circulation in the county announcing the appointment, the personal representative’s address, and notifying creditors of the estate to present their claims within four months after the date of the first publication of the notice or be forever barred.  In addition, a personal representative shall give written notice to all known creditors of the personal representative’s appointment.  The notice shall also notify all known creditors to present their claims within four months or be forever barred. 

        In BMO Harris Bank NA v. Espiau 1 CA-CV 20-0460, the Arizona Court of Appeals, Division One, held the statute requiring notice for claims against a decedent’s estate must be strictly complied with.  If a notice does not include all required information, including the deadline for presenting claims, the time limit does not begin to run.  This is true even if the recipient of an incomplete notice is a sophisticated and experienced bank.  

 

Disclaimer 

Rosenberg v. Sanders

 

        In Rosenberg v. Sanders, the Arizona Court of Appeals, Division One, held a grantor’s alleged statements after executing a beneficiary deed may provide relevant and admissible evidence of undue influence.  The trial court did not consider the statements because it applied the eight non-exclusive factors set forth in In re McCauley’s Estate.  The Court of Appeals held the statements should have been considered on summary judgment and, when so considered, along with evidence of the grantor’s earlier state of mind, the record had just enough evidence to create a factual dispute and defeat summary judgment.

The full opinion may be read here:

Rosenberg v. Sanders 

 

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Bates v. Bates No. 1 CA-CV 19-0845

  

Bates v. Bates

The appeal in this case concerns an irrevocable trust that granted a trust protector sole authority to amend the terms of the trust, and the question is whether an undue influence claim can be pled under Arizona Revised Statutes §14-10406 against a beneficiary who allegedly exerted undue influence over the trust’s elderly settlor to induce the trust protector to amend the trust. 

Petitioners, who are the settlor’s children and former wife, sued respondent, the settlor’s wife at the time of his death, in probate court, alleging she exerted undue influence over the settlor to cause the trust protector to amend the trust in her favor.  Respondent moved to dismiss the undue influence claim under Rule 12(b)(6) arguing petitioners only alleged she unduly influenced the settlor, rather than the trust protector, and the settlor had no power to amend the trust.  The court dismissed the claim and removed petitioners as beneficiaries under the trust’s in terrorem clause.  The appellate court reversed in part, vacated in part, and remanded for further proceedings.

The trust protector amended the trust twice within six months of its creation.  At issue in this case is the second amendment which eliminated the settlor’s former wife as a beneficiary, made his current wife the sole income beneficiary of the trust at the settlor’s death, and authorized the trustee to distribute the trust’s assets to the settlor’s current wife as “advisable for any purpose.”  The second amendment also reduced the settlor’s three daughters to remainder beneficiaries upon the current wife’s death, and added the current wife’s sons from a prior marriage as remainder beneficiaries. 

The appellate court ruled beneficiaries of a trust may challenge a trust protector’s amendment of the trust by alleging undue influence over the grantor to induce the trust protector to amend the trust.  

Disclaimer 

Arizona's 54th Legislature's Second Regular Session

Arizona’s 54^th Legislature’s Second Regular Session begins today, January 13, 2020; legislators have already filed 284 bills. 

A summary of just a few of the bills that have been filed are as follows.  To see a complete list of bills that have been filed, go to the Arizona State Legislature website at the following link: 

Arizona State Legislature Filed Bills 

HB 2074: DEATH CERTIFICATES; GENDER

 

The person completing a death certificate is required to record the decedent’s sex to reflect the decedent’s gender identity. On being presented with a document memorializing a gender transition, a local registrar or the state registrar are required to amend the sex listed on a registered death certificate to reflect the decedent's gender identity.

 

• ARS Title Affected: 36
• First Sponsor: Rep. Gabaldon (D - Dist 2)

HB 2055: CIVIL TRAFFIC VIOLATIONS; COMMUNITY RESTITUTION  

A person who violates traffic and vehicle regulation statutes may perform court-approved community restitution in lieu of paying a civil penalty, surcharge, assessment or fee. The court is prohibited from assessing the time payment fee (set elsewhere in statute and currently $20) on civil traffic violations.

• ARS Title Affected: 28
• First Sponsor: Rep. Biasiucci (R - Dist 5)

HB 2062: ANIMAL FIGHTING PARAPHERNALIA; OFFENCE

It is a class 1 (highest) misdemeanor for a person to knowingly own, possess, purchase, sell, transfer or manufacture "animal fighting paraphernalia" (defined) for the purpose of engaging in, promoting or facilitating animal fighting or cockfighting.

• ARS Title Affected: 13
• First Sponsor: Rep. Kavanagh (R - Dist 23)

 

HB 2049: MEDICAL CONDITIONS; MEDICAL MARIJUANA

 

The list of debilitating medical conditions that qualifies a person to receive a medical marijuana registry identification card is expanded to include opioid use disorder and autism spectrum disorder. Due to voter protection, this legislation requires the affirmative vote of at least 3/4 of the members of each house of the Legislature for passage.

• ARS Title Affected: 36 
• First Sponsor: Rep. Espinoza (D - Dist 19)

SB 1071: IMMIGRATION; LAW ENFORCEMENT; REPEAL

Repeals the following statutes established by Laws 2010, Chapter 113 (S1070): the prohibition on state and local government agencies or governing bodies restricting the enforcement of federal immigration law; the requirement for law enforcement officials to determine the immigration status of a person at any lawful stop or arrest where reasonable suspicion exists that the person is unlawfully present in the U.S.; provisions allowing law enforcement to arrest without warrant any person the officer has probable cause to believe has committed a public offense that makes the person removable from the U.S.; the defense of entrapment for employers found to be employing unauthorized aliens; the establishment of willful failure to complete or carry an alien registration document, unlawful stopping to hire and pick up passengers for work, and unlawful application for employment or employment by an unauthorized alien as class 1 misdemeanors; the requirement that a vehicle driven in furtherance of the illegal presence of an alien in the U.S. and in violation of a criminal offense be immobilized or impounded; and the establishment of the Gang and Immigration Intelligence Team Enforcement Mission (GIITEM) Fund.

• ARS Titles Affected: 12, 13, 23, 28, 41
• First Sponsor: Sen. Quezada (D - Dist 29)

HB 2035: APPROPRIATION; VETERANS; SERVICES; BENEFITS COUNSELORS

Makes a supplemental appropriation of $1.2 million from the general fund in FY2020-21 to the Department of Veterans' Services to hire additional benefits counselors.

• ARS Titles Affected: 41
• First Sponsor: Rep. Andrade (D - Dist 29)

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Free Legal Advice - Tax Law

ABC15 and the State Bar of Arizona have partnered to sponsor "Let Joe Know, Ask a Lawyer Phone Bank."  On Wednesday, March 14, 2018, from 5:00 to 7:00 p.m., lawyers will be on call to answer questions about tax law.  For more information, click on the following link:

State Bar of Arizona - Let Joe Know 

Hawaii Could Be the Seventh State to Allow Medical Aid-In-Dying

Expected to pass in the Senate, Hawaii’s House has approved a controversial medical aid-in-dying measure.  (House Bill 2739)  The measure allows a physician to prescribe life-ending medications to terminally ill, but mentally capable, patients with less than six months to live.  The patient must be capable of taking the medication themselves, only physicians may prescribe the medications, and a mental health consultation is required beforehand. 

For more information:  

House Approves Controversial Medical Aid-In-Dying Bill - Sending it to Senate 

The AMBER Alert in Indian Country Act

House Gives Final OK to Bill Extending AMBER Alerts to Indian Country

Until now, tribal law enforcement agencies had to work through state and local police agencies to post an AMBER alert.  This bill is sponsored by Senator McCain of Arizona, and was sparked by the May 2016 abduction of Ashlynne Mike, an eleven year old Navajo girl; an alert was not posted until the day her body was found.  The AMBER Alert in Indian Country Act will give tribes direct access to funds letting them quickly post AMBER alerts by text messaging, radio, and television.

House Gives Final OK to Bill Extending AMBER Alerts to Indian Country