Can a Non-Resident Serve as the Personal Representative of an Arizona Estate?
A question often asked in estate planning and probate is whether a non-resident can serve as the personal representative of an Arizona estate. That is an excellent question, but it is one of many issues that affect selection and appointment of a personal representative. When you make a last will and testament or a family member passes away, legal issues and practical considerations should both determine who will administer an estate. In the discussion that follows, we explain the primary factors that relate to choosing or serving as a personal representative for an Arizona estate.
Who Can Be a Personal Representative?
The personal representative of an estate is the individual who manages, administers, and ultimately distributes the estate of a person after they pass away. In Arizona, state laws determine who can serve as the personal representative of an estate. It’s important to note that even a person who is eligible — including an executor named in a will — must apply to the court for (and receive) letters of personal representative before they can exercise any control over the estate of a deceased person.
A specific statutory provision identifies who can serve as personal representative by establishing that the following persons cannot serve: a person under the age of 18 years, a person found unsuitable by the court, or a foreign corporation. In this context, foreign corporation means a company incorporated or registered under the laws of a state other than Arizona or in another country.
Based on the law, an out-of-state corporation cannot serve as the personal representative of the estate of an Arizona resident. However, the law does permit an individual who is more than 18 years old and resides outside Arizona to be a personal representative, since the statute does not have the same restriction on individuals.
While state law does permit a non-resident to serve as the personal representative of an Arizona estate, there are significant practical considerations to take into account in designating a personal representative in a will or in deciding whether to apply to the court for appointment after a family member passes away. In addition, Arizona law establishes a priority order of who may apply, so a person who wants to serve may not be eligible to request appointment if someone suitable with higher priority plans to apply.
Who Can Apply for Appointment?
Under Arizona law, a person named as the executor of an estate in a valid last will and testament has the highest priority to apply for appointment as the personal representative. If a named executor cannot serve or does not wish to serve, or if the deceased person died intestate (which means dying without leaving a valid will), the statute establishes a specific order in which individuals may apply to the court. Our previous blog article, Who Is the Personal Representative of Your Loved One’s Arizona Estate?, provides details about the statutory priority order.
Even though there is a statutory priority order, the court may decide that a person with priority is not suitable to serve. In that case, the right to apply falls to the next category with priority. Family disputes over the right to serve as the personal representative of an estate do not happen often, but they do sometimes occur. If there is a conflict over who will serve, the judge makes the decision based on the statutory priority and the evidence presented in court.
Non-Resident Personal Representative: Practical Considerations
When you designate an executor in a will, there are important practical considerations to take into account in deciding who should administer your estate, if you are contemplating choosing an executor who lives outside Arizona. An out-of-state family member thinking about applying to serve as the personal representative for a deceased loved one should factor in the same concerns.
Arizona law imposes substantial fiduciary duties on a personal representative. Generally, they include collecting property and assets, establishing the value of all assets, paying debts and expenses, resolving issues or family conflicts, and ultimately distributing the estate to the beneficiaries or heirs. All of the management and administration occurs under the supervision of the court where the deceased person resided.
While a personal representative should retain a probate attorney to assist with administration and probate in many cases, the individual appointed by the court still must spend considerable time fulfilling their legal duties. A probate attorney can handle many of the details of probate administration, but there likely are responsibilities that require the personal representative to be present in the county where the decedent resided.
For a person living out-of-state, that means either frequent trips back and forth, or spending a period of time away from their home to tend to estate affairs. Traveling to or staying in Arizona temporarily may be inconvenient — and possibly extremely difficult — for a non-resident. As a result, the travel requirement also may cause delay in how long it takes to complete administration of the estate, to the detriment of the beneficiaries of the estate. Finally, the estate pays the travel and temporary living expenses for the personal representative, so having a non-resident serve in the position may increase the costs of administration significantly. That means fewer assets are eventually available for distribution to the beneficiaries. In a specific situation, there may be other circumstances that affect the ability of a non-resident to perform the extensive legal duties as the personal representative of an estate.
When you make an estate plan, your attorney helps you evaluate all the factors that should enter into selection of an executor. That includes where the executor lives, and the implications of choosing someone who lives outside Arizona. Executor selection is one of many crucial aspects of estate planning that make it essential to get help from an experienced estate planning lawyer when you create your estate plan. Similarly, if a loved one passes away, a probate attorney can help family members determine the legal steps to take regarding the estate, including who should apply for appointment as the personal representative.
Schedule a Free Consultation With an East Valley Estate Planning and Probate Attorney
At Peterson Law Offices, we assist clients with both estate planning and probate in Arizona. When we help you establish your estate plan or probate a loved one’s estate, we make certain that all important factors are fully taken into account, including legal and practical considerations that affect appointment of the personal representative of an estate.
We take pride in providing high-quality services at affordable prices to clients throughout the East Valley, including Queen Creek, San Tan Valley, Gilbert, Mesa, and Chandler. Schedule s free initial consultation by calling 480-878-5998 or using our online contact form.