Updating to 2012.4.2

First you will need to determine which version you are running.
1. Open AvidLaw Probate
2. Find the version number

The version number can be found at the top left hand corner of the left pane.

Once you have determined the version you are running you will need to do one of the following.
A. If you are running AvidLaw Probate Version 2012.4.0 or later

Click the Tools tab
Select Update Template Sets…
Click Ok

Click Continue
This will begin the install process. If asked to overwrite existing files select Overwrite All

B. If you are not running AvidLaw Probate Version 2012.4.0 or later

Read these special instructions.

If you need assistance or are having trouble with the steps above please call us (480) 361-1324 or email us support@avidlaw.com

Update on Mandatory Training for Unlicensed Personal Representatives

A Few Refinements. As we explained back in September, Rule 27.1 of the Arizona Rules of Probate Procedure, which became effective on September 1, 2012, requires individuals who are not licensed fiduciaries to “complete a training program approved by the Supreme Court before letters to serve as guardian, conservator, or personal representative are issued.” This requirement applies unless otherwise ordered by the court. It also doesn’t immediately apply in the case of temporary appointment of guardians and conservators in emergency situations under A.R.S. § 14-5310(A), A.R.S. § 14-5401.01(A) or A.R.S. § 14-5207(C). In these situations, the training program must be completed “within thirty days of appointment or before the permanent appointment of the fiduciary, whichever is earlier.” In that earlier article, we also reviewed the nature of the mandatory training and where the training programs can be found. In the interim since that article, a few things have changed in this regard. The following information is more current:

The Nature of the Training. The Internet web site for the Arizona Judicial Branch, http://www.azcourts.gov/probate/Training.aspx, includes the required training program. Training for unlicensed personal representatives is provided in two courses. The proposed personal representative must complete both courses before letters will be issued. Each course is available either as an online video, which can be viewed in fewer than fifteen minutes, or as a PDF file, which can be reviewed in approximately the same amount of time. Also, for persons without computer access, each course is available in alternate formats through the Superior Court in each county.

The first course is a general overview, entitled Introduction to Serving as a Non-Licensed Fiduciary. This course is required not only for personal representatives, but also for guardians and conservators. The second course, which is unique to personal representatives, is entitled Welcome to Personal Representatives Training Module.

AvidLaw Document Changes. The AvidLaw templates for the Statement of Informal [Probate and] Appointment of Personal Representative have been updated to contain the appropriate language to implement this new requirement. We have also updated the applicable AvidLaw checklists to remind you that this training must be completed and that notice of completion must be filed with the Court prior to the issuance of Letters.

In addition, now that Certificates of Completion are available and can be incorporated into our software, we have added the two Certificates of Completion applicable to personal representatives to the AvidLaw documents. In addition, we have added a new document entitled Notice of Completion of Required Training, as the pleading to be filed to provide notice that the training has been completed and to with the Certificates of Completion attached.

These document changes are only available in our most recent update, numbered 2012.4.2. If you are using an earlier version of our software, you must update your software to take advantage of these changes, as well as other revisions, bug corrections, etc., that will make your drafting experience more efficient and your pleadings more effective.

AvidLaw Tips: Document Options

At the time you initially install AvidLaw Probate, you go through the Enter Attorney Information interview, setting up information about your practice, entering default document options, and entering your AvidLaw license code. As time goes on, you may not think much more about those settings. This article reviews the document options that can be changed at Enter Attorney Information. It may be helpful for those who have been using AvidLaw probate for a while to review these options to determine whether you are using the document options that are best for your practice.

Locating the Document Options. The second dialog in Enter Attorney Information, the one that follows Attorney Information, is called Document Options. This dialog contains a set of questions about the default manner in which documents are assembled in AvidLaw Probate. After these options have been selected, they apply automatically to all documents drafted in AvidLaw Probate. A document option can be changed for a given pleading, for a given case, or for all documents to be drafted in the future. If you want to change an option, just make the change in Enter Attorney Information, then draft the applicable documents. The option will apply as changed to all documents drafted until you return to Enter Attorney Information to change the option again.

Display law firm information vertically in left margin. The first document option is whether you want your law firm information to be displayed vertically in the left margin of pleadings. This is, of course, just an aesthetic decision. Such a display is not required, but is preferred by many of our customers.

Identifying the Court in the Caption. AvidLaw Probate pleadings identify the court in one of two ways. The longer designation is IN THE SUPERIOR COURT OF ARIZONA IN AND FOR [COUNTY] COUNTY. The shorter designation is ARIZONA SUPERIOR COURT [COUNTY] COUNTY. Either designation is appropriate. The selection of one other the other is a matter of personal preference.

Format of Law Firm Countersignature Line. Some AvidLaw pleadings that are signed by applicants, personal representatives, or other parties are designed to be countersigned by the attorney. AvidLaw provides three different formats for these countersignature blocks. The first option lists the name of the firm followed by a signature line. The second adds the name of the attorney below the signature line. The third also adds the law firm address below the name of the attorney.

Signatory of Certain Notice Documents. Some firms prefer to have the Notice of Informal Probate, Notice of Informal Appointment, Notices to Creditors and Proofs of Mailing signed by the client (either the applicant or the personal representative). Others prefer to have these documents signed by the attorney. This option allows a firm to select the option it prefers. It appears the most firms prefer to have these documents signed by the attorney, perhaps because such a signature doesn’t require any appointment with the client.

Assembly of Comprehensive Sets of Documents. AvidLaw Probate contains several “Assemble All” items that allow users to answer the relevant questions, then assemble all documents applicable to a given stage of the probate process. This document option allows you to determine whether the set of documents assembled at these items is created as one single Word document file, encompassing all of the documents, or whether each document in the set is assembled as a separate Word document file. In our experience, most firms choose to have each document in the set assembled as a separate Word file, but several have opted to include all of the documents in a single Word document file.

Notary Blocks: Blank for Date Commission Expires. In Arizona, no blank is needed for the date on which the notary’s commission expires. If such a blank is provided, however, the notary must provide the date on that blank. Some law firms prefer to include such a blank in all notary blocks. Among other things, this avoids problems when documents are notarized in other jurisdictions where such a blank is required. Other firms omit the blank on documents assembled for notarization in Arizona, adding it manually to drafts of documents to be signed in other jurisdictions.

Notary Blocks and A.R.S. § 41-313(C) Compliance. A.R.S. § 41-313(C) states that if a notary “attaches a notarial certificate to a document using a separate sheet of paper,” the attachment must contain a description of the document that includes at a minimum: 1. “the title or type of document,” 2. the document date, 3. the number of pages of the document, and 4. any additional signers other than those named in the notarial certificate. This document option allows you to include a description to the notary block that is intended to meet this requirement. Each firm can determine whether to include the description in documents assembled through AvidLaw Probate.

The New Mandatory Fee Guidelines

Fee Guidelines. The new provisions of Rule 33 of the Arizona Rules of Probate Procedure, which are effective on September 1, 2012, require the Superior Court to follow the new statewide fee guidelines set forth in the Arizona Code of Judicial Administration. In most cases, these guidelines will come into play when the court is considering a petition for approval of fees. Attorneys representing personal representatives don’t generally need to file such petitions (see Rule 33(G)), but these guidelines also apply whenever the court is determining “reasonable compensation” under the probate code (Rule 33(F)). Since such a determination can occur in informal probate cases, personal representatives and their counsel should be aware of and comply with these guidelines. These new mandatory guidelines can now be seen at: http://www.azcourts.gov/Portals/0/admcode/pdfcurrentcode/3-303_New_2012.pdf

A Few Important Points. While each probate practitioner should review and understand every aspect of these guidelines, the following are some major points of particular interest.

• The fee guidelines don’t apply if compensation is set forth in the will.
• Reasonable compensation is best determined on a case-by-case basis in light of consistent compensation guidelines
• The judicial officer has discretion to assign more or less weight to each of the compensation factors as deemed just and reasonable
• While travel and waiting time can be billed at regular rates, they may be deemed unnecessary if written or electronic correspondence or telephonic hearings would have served the need without unnecessary cost
•  if services could have been performed by someone with a lower billable rate, that rate should apply to these services
• clerical and secretarial services are not billable on an hourly basis, but are to be factored into the hourly rates of the professionals who use those services
•  reimbursable costs incurred in the best interests of the estate are to be reimbursed at actual cost, with no markup
•  only one attorney may bill for attendance at hearings, depositions, etc. (absent good cause)
•  flat fee compensation (for all or part of an engagement) is permissible if (a) the flat fee enhances the predictability of the amount of compensation, (b) the flat fee helps to align the interest of the professional with that of the estate (e.g., the professional is thereby more motivated to seek the interests of the estate), (c) the flat fee is disclosed in advance, in writing, in detail, with reference to the hourly fees that would otherwise be charged, and (d) the professional documents the actual efforts covered by the flat fee

Many other specific points are included with the guidelines. Be sure to become well acquainted with them and to modify your billing practices as needed to ensure conformity with the guidelines and to continue to receive reasonable compensation for your services.

Mandatory Training for Non-licensed Fiduciaries

The Training Requirement. Rule 27.1 of the Arizona Rules of Probate Procedure, which is effective on September 1, 2012, requires individuals who are not licensed fiduciaries to “complete a training program approved by the Supreme Court before letters to serve as guardian, conservator, or personal representative are issued.” This requirement applies unless otherwise ordered by the court. It also doesn’t immediately apply in the case of temporary appointment of guardians and conservators in emergency situations under A.R.S. § 14-5310(A), A.R.S. § 14-5401.01(A) or A.R.S. § 14-5207(C). In these situations, the training program must be completed “within thirty days of appointment or before the permanent appointment of the fiduciary, whichever is earlier.”

The Nature of the Training. The Internet web site for the Arizona Judicial Branch, http://www.azcourts.gov/probate/Training.aspx, has now been updated to include the required training program. Training for unlicensed personal representatives includes two online videos. The first is a general overview, entitled Introduction to Serving as a Fiduciary, that is applicable to guardians, conservators, and personal representatives. This helpful video can be viewed in fewer than fifteen minutes. The second online video that must be watched by unlicensed personal representatives is entitled Welcome to Personal Representatives Training Module. This second online video can also be viewed in fewer than fifteen minutes. At the end of each online video is a page that can be printed, signed and dated, and submitted to the Court as proof of training.

Where to Find the Training Programs. The Internet web site for the Arizona Judicial Branch also explains that these programs “will be delivered online and available in alternate formats through county superior courts.” We didn’t check all county web sites, but we did locate the training videos on the Maricopa site at http://www.azcourts.gov/probate/Training.aspx.

Document Changes. The AvidLaw templates for the Statement of Informal [Probate and] Appointment of Personal Representative have been updated to contain the appropriate language to implement this new requirement. We have also updated the applicable AvidLaw checklists to remind you that this training must be completed and reported to the Court prior to the issuance of Letters and to include the applicable Certificates of Authenticity with the documents to be filed.

How to Update AvidLaw Probate

First you will need to determine which version you are running.
1. Open AvidLaw Probate
2. Find the version number

The version number can be found at the top left hand corner of the left pane.

Once you have determined the version you are running you will need to do one of the following.
A. If you are running AvidLaw Probate Version 2012.2.0 or later

Click the Tools tab
Select Update Template Sets…
Click Ok

Click Continue
This will begin the install process. If asked to overwrite existing files select Overwrite All

B. If you are not running AvidLaw Probate Version 2012.2.0 or later

Go to www.avidlaw.com/download/ and click the button to download AvidLaw Probate 2012

If you need assistance or are having trouble with the steps above please call us (480) 361-1324 or email us support@avidlaw.com

What’s new in this update?

Personal Representative Priority and Renouncing the Right to Serve

An objection to the appointment of a personal representative can’t be resolved in an informal proceeding—it “can be made only in formal proceedings” (A.R.S. § 14-3203(B)). This means that everyone involved in an informal probate proceeding must be in accord about the proposed personal representative. If anyone objects to an appointment or if the court determines that there is an unresolved issue of priority, a formal proceeding is needed to resolve this issue. Consequently, it is important for practitioners to understand the order of priority among those who may serve as personal representatives. It is also important that the pleadings clearly state that those whose appointment is sought have priority and that anyone who might otherwise have priority has appropriately renounced the right to serve and has consented to the appointment of  those whose appointment is sought.

Qualified to Serve. The order of priority for personal representative is set forth in  A.R.S. § 14-3203. Even a person who has priority to serve cannot serve if that person is “disqualified” (see A.R.S. § 14-3203(A)) or in other words, is “not qualified to serve” (see A.R.S. § 14-3203(F)). Neither minors (persons under the age of 18 years) nor foreign corporations can qualify to serve as personal representatives in Arizona (see A.R.S. § 14-3203(F)(1) and (3)). In addition, others can be deemed “not qualified to serve” if, in formal proceedings, the court finds them “unsuitable” (see A.R.S. § 14-3203(F)(2)).

Priority under the Will. If a valid will is being probated, the highest priority goes to a person named as personal representative in the will (or to a person named pursuant to a power that was conferred in the will) (see A.R.S. § 14-3203(A)(1)). If the will names multiple parties to serve together, they may do so by jointly applying for appointment (see A.R.S. § 14-3203(C)). A person named in a will (or in a power conferred in the will) may serve or renounce the right to serve, but cannot nominate another to act in his or her place (see A.R.S. § 14-3203(C)).

Priority of the Surviving Spouse. If a valid will is being probated and no personal representative is named in the will (or in a power conferred in the will), or if all who are named in the will are renouncing, and the surviving spouse is a devisee under the will, then the surviving spouse has priority to serve as personal representative (see A.R.S. § 14-3203(A)(2)). If, however, the surviving spouse is not a devisee under such a will, the other devisees have priority to serve (see A.R.S. § 14-3203(A)(3)).

If, on the other hand, no valid will is being probated, or if all qualified devisees under the will renounce the right to serve, the surviving spouse has priority to serve (see A.R.S. § 14-3203(A)(4)).

Priority of other Devisees and Heirs. As mentioned above, if a valid will is being probated and no personal representative is named in the will (or named in a power conferred in the will), or if all who are named in the will are renouncing, and there is no surviving spouse or if the surviving spouse either is not a devisee under the will or the surviving spouse renounces the right to serve, then the other devisees have equal priority to serve (see A.R.S. § 14-3203(A)(2)).

If, on the other hand, no valid will is being probated, and there is no surviving spouse or if the surviving spouse renounces the right to serve, then the other heirs of the estate have equal priority to serve  (see A.R.S. § 14-3203(A)(5)).

Nominating Another to Serve. A surviving spouse, a devisee, or an heir with priority to serve may serve, may renounce the right to serve, or may nominate another to serve as personal representative in his or her place  (see A.R.S. § 14-3203(C)).

Multiple Qualified Devisees or Heirs with Priority. If multiple qualified devisees or heirs have priority, any of them for whom appointment is not sought must renounce the right to serve and consent to the appointment of those for whom appointment is sought (see A.R.S. § 14-3203(C)).

Foreign Domiciliary Personal Representative. In the case of the probate of the Arizona estate of a decedent who was domiciled in another state, the personal representative appointed by the court in the domiciliary state has priority unless the will appoints another person to be the personal representative of the Arizona estate (see A.R.S. § 14-3203(G)). Note, however, that foreign corporations can’t qualify to serve as personal representatives in Arizona (see A.R.S. § 14-3203(F)(3)). If the foreign domiciliary personal representative is a foreign corporation, or otherwise chooses not to serve, it can nominate another party to serve in Arizona (see A.R.S. § 14-3203(G)) and the nominated party will have the same priority as the domiciliary personal representative.

Others with Priority. After devisees and heirs, the department of veterans’ services is next in line for priority if the decedent was a veteran, the spouse of a veteran, or the child of a veteran (see A.R.S. § 14-3203(A)(6)). Forty days after the decedent’s death, any creditor is next in line for priority (see A.R.S. § 14-3203(A)(7)). Final priority lies in the public fiduciary (see A.R.S. § 14-3203(A)(6)).

Minors and Protected Persons. While minors are unqualified to serve as personal representative, a conservator for a minor, or for a protected person, or if there is no conservator, a guardian, can represent the interests of the minor or protected person by objecting to a nomination, nominating, or otherwise participating in the process of appointment (see A.R.S. § 14-3203(D)). A minor who is at least 14 years old who would have priority except for his or her minority may nominate a personal representative to serve (see A.R.S. § 14-3203(C)).

Personal Representative Compensation and Renunciation of Fee

If you were to ask someone who has served as a personal representative of an estate, you would probably learn that it was a significant, sometimes stressful, effort. It is not surprising, then to learn that personal representatives are entitled to “reasonable compensation” for their services (see A. R. S. § 14-3719). In fact, even if the will spells out the amount of compensation to be received by the personal representative, if that amount is not “reasonable,” then the personal representative can, by renouncing that provision of the will, and thereby become entitled to “reasonable compensation” (see A. R. S. § 14-3719). Of course, if the personal representative is otherwise contractually obligated to perform the services for a specified amount of compensation, a renunciation of a provision in the will does not void the contract (see A. R. S. § 14-3719).

In some cases, however, despite the fact that the law allows the personal representative to receive reasonable compensation for services, the personal representative may be better off by renouncing the right to such compensation. For instance, if the personal representative is the sole devisee or heir to the estate, it makes little sense to compensate the personal representative from the funds that will eventually go to him or her by inheritance. Among other things, income received for services as a personal representative are taxable income, whereas money received as an inheritance isn’t taxable income.

If a personal representative prefers not to be compensated, or prefers to receive less than the amount that would be considered to be reasonable compensation, he or she may renounce the right to receive all or any portion of such compensation (see A. R. S. § 14-3719). In addition, a written renunciation of fee may be filed with the court. AvidLaw Probate includes such a renunciation.

On the other hand, if the personal representative opts to receive reasonable compensation for services, the personal representative must keep detailed records that can substantiate the reasonableness of the fees. These records should account for such factors as the types of services provided, the time and skills required to accomplish the services, the novelty or difficulty of issues encountered, the impact of service as personal representative on other opportunities for compensation, fees customarily charged in the area for similar services, the size of the estate and its income, potential liabilities associated with the service, results obtained for the estate, time constraints imposed by various circumstances, the personal representative’s experience, reputation, diligence and ability, and the reasonableness of the efforts expended.