When it comes to estate planning, one of the most important decisions you will make is who will carry out your wishes when you are gone. An executor, or “personal representative” as it is called in Arizona, is the person you can designate to communicate and enforce the provisions of your Arizona last will and testament. But can a personal representative of a will be a beneficiary, too? And what happens if a personal representative is not carrying out the deceased’s wishes? It’s fairly common for the personal representative to also be a beneficiary, but a beneficiary personal representative conflict can occur. Here’s what you need to know.
Disclaimer: Please note that this article is not intended to be legal advice. You should always talk to an attorney who is skilled at estate planning about your unique situation.
Can you benefit from a will if you are a personal representative?
In short, yes. If you are the personal representative of an estate, as identified in the deceased’s will (or otherwise appointed thereafter), it is perfectly legal for you to also be named as a beneficiary.
Note that if someone passes away without a will, their estate (all of their assets less debts) will pass under the intestate statutes and a personal representative may still be required and appointed if their assets less debts are large enough.
In most cases, an adult child who is designated (or appointed) as a personal representative also benefits from the estate. For couples without children, the personal representative and sole beneficiary may be the same person (typically a spouse).
The personal representative of your estate may also have power of attorney while you are alive, if you elect to designate someone for this purpose. This set-up, however, can become complicated. The most important thing to consider is that both your personal representative and the person with power of attorney can be trusted to carry out your wishes.
What is the difference between a beneficiary and an executor?
It can be helpful to understand the legal definitions of a beneficiary, a personal representative, and other interested persons. Most of us are at least passingly familiar with what a beneficiary is. Fewer may be aware of what a personal representative does or what “interested person” means when it comes to estates.
What is a beneficiary?
According to Arizona Title 14-1201, a beneficiary of a will or inheritance refers to someone who receives some type of benefit upon the occasion of a person’s death (typically financial). These benefits may include:
– An insurance or annuity policy
– A gift of real estate or personal property
– Money or other financial instruments held in a financial account with a payable-on-death designation
– A security registered in a beneficiary form or a pension
– A profit sharing interest in a business
– Payment from a retirement or similar benefit plan
– Other non-probate transfers at death
What is an executor?
Legally speaking, a personal representative carries out the provisions of the will. A personal representative is often the deceased’s spouse or child, but close friends, other trusted associates, or even a lawyer may also be appointed. Because a family member is the most common personal representative, the role of beneficiary and personal representative often overlap.
Just because you have been appointed personal representative does not mean you must accept the role. Family members may not want to feel caught in the middle when a loved one passes away—and may choose to decline appointment. In this case, another personal representative can be named before or after a person dies.
Who is an interested person?
When it comes to a person’s estate, there are usually many people who are affected. This overarching category can include beneficiaries and personal representatives, as well as any:
– Anyone or any charitable entity named in the will or trust
– Anyone holding a power of appointment
– Anyone else who has a property right in, or claim against, an estate
As noted in Title 14-1201, the term interested persons “may vary from time to time and must be determined according to the particular purposes of, and matter involved in, any proceeding.”
What are the responsibilities of a will’s personal representative?
The responsibilities of a personal representative are outlined in Arizona will statutes (Title 14). A personal representative’s duties to the estate and the beneficiaries include processing the will through probate, which generally takes between six and eight months. You may also be responsible for the following.
Informing heirs and creditors
The personal representative of an estate has 30 days to locate and inform the interested persons of the appointment as personal representative for the estate of the deceased (legally called “decedent”) (Title 14-3705).
Doing this also informs interested persons that they may have some interest in the estate.
Taking inventory of the decedent’s property
Under Title 14-3706, the personal representative has 90 days to prepare a complete inventory of the deceased’s property. This includes noting the fair market value of the property, any liens against the property, and whether it is held in community with another person.
Interested persons can request a copy of this inventory. If other property is discovered after this first inventory, or the value of the property changes, the personal representative must file a supplemental inventory, noting the changes.
Taking possession of property and protecting assets
Perhaps one of the most challenging aspects of a personal representative’s duties is taking possession of the deceased’s property, if necessary, and protecting it.
After a person’s death, family relationships may become contentious and some members may attempt to subvert the wishes of the deceased by confiscating property or selling off assets. Once a person passes away, the personal representative of the estate is responsible for the decedent’s property.
If any person, including the personal representative, fails to adhere to the statutory mandates regarding protection of the decedent’s property and handling of assets, they may be subject to prosecution (Title 14-3709).
Conducting business as the deceased
In addition to these basic duties, personal representatives have authority, when acting reasonably for the benefit of the interested persons, to conduct certain transactions related to the estate as outlined in Title 14-3715.
Some of these allowed activities include:
– Paying creditors as needed
– Receiving or distributing assets
– Fulfilling contracts made by the deceased
– Fulfilling charitable pledges
– Making ordinary and necessary repairs or alterations to maintain property
How to deal with contentious will arrangements
For some, following the wishes of the deceased is straightforward. For complex estates or those that are contested, things can get complicated.
If you’re interested in contesting a will, you’ll have to prove that all or a portion of the will is invalid. This can be an extremely complex process that’s always best undertaken with the help of a highly qualified estate attorney.
Generally, you may be able to prove a will is invalid for one (or more) of these reasons:
– The deceased was not in their right mind (lacked capacity) when the will was made
– There is evidence that the will was made under duress
– There is evidence of fraud
Interested persons may also take issue with the personal representative’s actions. Personal representatives who refuse to show the will to heirs, attempt to change the distribution of assets from what is outlined in the will, ignore the provisions of the will, or, in the worst case scenario, attempt to take everything for themselves must be dealt with in court. In these cases, it’s vital that you talk to an estate attorney to discuss your options.
How to enforce a will
If you are an interested person and feel the will’s personal representative is not lawfully performing their duties, there are ways to enforce the will.
– Get legal help: Going it alone can be difficult. Consulting with a lawyer can help you better understand your rights.
– Notify the personal representative: If you can resolve the issue outside of court, this is the best course, especially when the personal representative is a family member. If not, filing a complaint with the probate court and requesting a full account of the estate is your next step. Again, this is always best done with an attorney’s assistance.
Because issues surrounding wills can be complicated, you need an Arizona estate lawyer you can trust. ARTEMiS Law Firm has the compassionate experience you need for all matters surrounding your estate settlement. Get in touch today for help.Contact Us