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.

The Bond Requirement

In order to protect the interests of heirs, devisees and creditors against the possibility that the personal representative might mishandle the estate, A. R. S. § 14-3603 requires the Personal Representative to file a bond. However, because such risk is often minimal, the statutes also provide several exceptions to this bond requirement. In fact, the exceptions are such that the filing of a bond in an informal probate is relatively uncommon. In cases where a bond is required, the amount of the bond can be provided in the will (see A. R. S. § 14-3604(A)) or, if not, it will generally not be less than the amount of the Personal Representative’s estimate of the value of the estate (less encumbrances), together with the annual income expected to be earned by the estate (see  A. R. S. § 14-3604(A)). Several other factors, mentioned below, can also affect the bond amount.

Exceptions to the Bond Requirement

There are three exceptions to the bond requirement that often apply to an individual personal representative in an informal probate. In a testate probate, the bond requirement can be expressly waived in the will (see A. R. S. § 14-3603(A)(1)). Even if the will doesn’t expressly waive the bond requirement, this requirement can be waived by writings signed by all of the devisees (see A. R. S. § 14-3603(A)(2)). Similarly, in an intestate probate, the bond requirement can be waived by writings signed by all of the heirs (see A. R. S. § 14-3603(A)(2)).

Certain entities are exempt from the bond requirement when they serve as personal representative. These include most banks, savings and loans, title insurance companies, and certified trust companies (see A. R. S. § 14-3603(A)(3)).

The final exception to the bond requirement applies in the limited situation in which the estate is small enough to qualify for summary administrative procedures under A. R. S. § 14-3973 and the surviving spouse is either applying to serve as personal representative or is nominating someone to serve as personal representative.

Although there is generally no bond requirement under these exceptions, A. R. S. § 14-3603(A) provides that the court may still require a bond if an interested party petitions for a bond requirement, providing reasonable evidence that the interested party’s interest in the estate “in danger of being lost because of the administration of the estate.” Such a petition can even be filed by a party who earlier waived bond.

Reductions in the Bond Amount.

In cases where bond is required, the registrar may permit the amount of the bond to be reduced by the value of assets deposited in a restricted account with a domestic financial institution (see A. R. S. § 14-3604(A)). On petition by the personal representative or another interested party, the registrar may further reduce the bond amount, eliminate it altogether, or even increase it (see A. R. S. § 14-3604(A)).

Arizona Tardy Probate

Tardy Probate and Other Exceptions to the Two Year Requirement
A. R. S. § 14-3108 provides that in most cases a probate proceeding, whether formal or informal, “shall not be commenced more than two years after the decedent's death.” There are, however, four exceptions to this general rule.
The first three of these exceptions are fairly narrow. We will first mention these unusual exceptions, then we will discuss the fourth exception, tardy probate, which is very common.
The first exception to the two year requirement deals with the rare case in which a prior proceeding has been dismissed because of doubt about the fact of the decedent's death. In such a case, a proceeding can be filed “anytime thereafter” if it can be shown that the decedent did, in fact, die before the prior (dismissed) proceeding and it can be shown that the person bringing the case (applicant or petitioner) didn't “unduly” delay the subsequent proceeding. In this case, the date the case is filed is to be treated as the date of death for purposes of other provisions that relate to the date of death.
The second exception deals with the unusual case of a person who had been missing, absent or disappeared and for whom a conservator had been appointed. A probate proceeding for such a person can be filed within two years after the conservator is able to establish the death of that (protected) person. In this case as well, the date the case is filed is to be treated as the date of death for purposes of other provisions that relate to the date of death.
The third exception covers another uncommon situation. If a will has been informally probated, a proceeding to contest the probate of the will can be brought within the later of two years after the decedent's death and twelve months after the informal probate.
Tardy Probate
The fourth exception is the tardy probate exception. This exception allows a probate proceeding to be brought after the two years have passed if none was brought during the two years. There are two limitations to a probate proceeding brought under the tardy probate exception. First, the Personal Representative may only possess estate assets to the degree necessary “to confirm title thereto in the rightful successors to the estate.” Second, the only claims that can be presented against the estate are expenses of administration. Because there is no need to deal with creditor's claims, there is no need to publish notice to creditors or to wait for creditors to file claims against the estate. Consequently, the property can be transferred as soon as letters are issued and the probate can be closed as soon as the property has been transferred.
This “tardy probate” exception has proven very useful—particularly in cases in which the need for a probate is only made evident to the successors in interest years after the death when they are preparing to sell or transfer assets still held in the decedent's name. A common situation is when the estate property passes the surviving spouse, but no probate takes place to transfer estate assets to the spouse. Later, when the surviving spouse decides to sell the home, it is realized that this property is still held in the name of the decedent. Clear title to the home can often be obtained at this late date through the “tardy probate” process.
AvidLaw Probate easily identifies a tardy probate, asks the relevant questions, and prepares the applicable documents, saving you time and increasing profitability even if tardy probates are not common to your practice.

New Auto Update Feature

With our latest quarterly update, AvidLaw Probate now has an auto-update feature that greatly simplifies the process of keeping the template set up-to-date. After you install this latest quarterly update, future updates will happen almost automatically. When we upload an update to the Internet, your software will automatically sense that the update is available. Then, whenever you initiate the assembly of a template (whether an AvidLaw Probate template or not), you will be notified that there are updates available and be given instructions on how to find and install them.

One of the greatest benefits of this new feature is that it lets us update the software a little more often. We will continue to do one major update each quarter and we will continue to let you know, through this newsletter and email, when a quarterly update is available. In addition, if we make a small but very helpful change between quarterly updates, we now have a means to provide the change to every user before anyone assembles another AvidLaw Probate template.

As we mentioned, this feature is only available to you after you install the latest quarterly update in the traditional manner. If you haven’t already done so, please follow the instructions in the quarterly update email as soon as possible, so that the Auto Update feature will be available to you for all future updates.

Here is a link to a short video that demonstrates how the new auto update feature works. Please, let us know if you have any questions, concerns or comments. Thank you!

The Finish Button

Some of you have reported inconsistent results relating to the Assemble ALL Documents feature within AvidLaw Probate. In some cases, the documents are not all being assembled when, at the End of Interview screen, you click on “Send the assembled document to Microsoft Word and close this window.” For this reason, we have changed our instructions for assembling all documents from the End of Interview screen. In the future, please click on the Finish button located in the lower right hand corner of the End of Interview screen in the Assemble window. This button will consistently assemble the document or documents associated with the interview. Also, be aware that this button is available throughout the interview and, if selected, will begin the assembly of the document or documents associated with that interview.

Also, because we no longer recommend that you use the “Send the assembled document to Microsoft Word and close this window” button, we suggest that you change your HotDocs Options to remove this button from the End of Interview screen. To do this, open AvidLaw Probate and select the Tools tab and then Options. Click on the plus sign next to the Interviews and Dialogs folder to see the subfolders.  Select the End of Interview subfolder and, within it, unselect “Send the assembled text document to the word processor.” While you’re here, we suggest that you also unselect “Close this window without saving the assembled document.” This option simply performs the same function as the red X in the upper right hand corner of the Assemble window.

If you need help with these steps or have any questions please let us know.

New Referral Program

Now your friends and colleagues who are new to AvidLaw Probate can use it on one matter for free. If they mention your name when they sign up, we’ll also credit you with a free AvidLaw Probate matter of your own (or, if you have an annual license, we’ll add two months onto your next annual subscription). It’s a win-win opportunity!

We’ve learned that your good word is easily our most effective way to get the word out about AvidLaw Probate. We have set up a way to make it easier than ever for your friends to take AvidLaw Probate for a spin—with a significant benefit both for them and for you. Just have your friend call me, Garth Pedersen, at 480-361-1324, asking for our special offer and mentioning your name. We’ll set them up with AvidLaw Probate and credit you for sending them our way.

Thank you for your help. We look forward to sharing with your colleagues all the benefits of AvidLaw Probate.