Requiring a Bond from a Former Personal Representative in Arizona

The probate court can require that a personal representative post bond. It can do this even if the will waives bond. It can also remove the personal representative. But can the probate court require that a personal representative post a bond after removing him from service? In Kinnear v. Finegan, 672 P. 2d 986 (1983) the Arizona Court of Appeals considered the issue.

Facts and Procedure

Mrs. Jones died in August 1977. Her will named Mr. Finegan as personal representative to serve without bond. He was appointed a personal representative on October 19, 1977.

In 1979, three devisees, Mrs. Kinnear, Mrs. Pagano and Mrs. Nelson, asked the court to remove Mr. Finegan as personal representative. They also asked the court to appoint the public fiduciary as successor personal representative, and require Mr. Finegan to post a bond. The court granted this motion.

A month later, the trial court learned that the public fiduciary could not serve. An informal conference took place in July 1980, and the court appointed a private fiduciary, Mrs. Elliston, as successor personal representative. The court entered formal judgment removing Mr. Finegan and naming Mrs. Elliston as his successor. The judgment was silent as to the bond requirement.

In September 1980, the court modified its judgment to include an order requiring Mr. Finegan to immediately post a $200,000.00 bond. Mr. Finegan appeals both from the judgment entered July 25, 1980, and from the judgment entered September 9, 1980. He claims that the court erred in appointing Mrs. Elliston successor personal representative, and in requiring him to post a bond.

Mrs. Elliston’s Appointment

The successor personal representative statute requires notice and an opportunity to object. Mr. Finegan claims that he and devisees Mr. Jones III and Mrs. Finegan did not receive notice of the meeting. The Court noted that Mr. Finegan’s attorney had notice of the meeting and appeared on his behalf. Counsel did not object, therefore Mr. Finegan has no right to object here.

As to the lack of notice to Mr. Jones III and Mrs. Finegan, Mr. Finegan does not have the standing to raise any issue regarding them.

Posting Bond after Removal

Mr. Finegan argues the trial court erred in requiring him to post bond following his dismissal. At that point, his administration was at an end and he was required to turn over all assets. The Court noted that although Mr. Finegan was appointed to serve without bond, the trial court may require a bond. It can do this where any interested person offers proof that a loss may be incurred by the estate.

Mrs. Kinnear, Mrs. Pagano, and Mrs. Nelson requested a bond when Mr. Finegan was removed as personal representative because he had not accounted for all the estate assets. They argued that the probate court has inherent equitable power to protect the assets of the estate. However, the administration of a decedent’s estate is purely statutory. The court must strictly adhere to the applicable statutes.

The bond statute does not expressly provide for the posting of a bond by a personal representative following his removal. It specifically states that the bond of a personal representative is to protect against loss “because of the administration of the estate.”

The judgment below ended Mr. Finegan’s administration of the estate by removing him as personal representative. The court also directed both that he turn over estate assets to the new personal representative and that he file a final account. The order provided for compliance within twenty days and specified that the bond is filed at the same time.

The bond, as ordered, would only offer protection for matters arising after Mr. Finegan’s administration had come to an end. This procedure is not sanctioned by A.R.S. § 14-3603(B) or any other probate statute. Other remedies exist in this situation, including restraining orders and the contempt power of the court. The Court of Appeals agreed with Mr. Finegan on this issue.

Disposition

The Court of Appeals affirmed that portion of the judgment of the trial court appointing Mrs. Elliston successor personal representative, but reversed the order requiring Mr. Finegan to post a bond.

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