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Duties of Executor of Last Will and Testament in Arizona

Posted on : December 6, 2016, By:  Christopher Hildebrand

Duties of Executor of Last Will and Testament in Arizona


Some court cases treat one or two big legal issues. Other times, the Arizona Court of Appeals must decide a smattering of smaller legal issues, which was the case in case of Estate of Nolan, 108 P.2d 391 (1940). In the Nolan case, the Arizona Court of Appeals considered various estate accounting issues.

The case is an appeal from the rulings of a probate court. The case was unusual because the executrix of the estate happens to also be the sole beneficiary of the will. She claimed to be the second wife of the decedent, but the Court found his divorce from his first wife void. The first wife is, therefore, the heir at law to the estate.

Facts and Background

Mr. Nolan married Mrs. H. Nolan. Some years later, he got a divorce in Mexico. He then married Mrs. G. Nolan, with whom he lived as man and wife.

Mr. Nolan died in Phoenix, Arizona, in 1936. At the time of his death, he owned property in Nebraska and in Arizona. The Arizona court opened probate and issued letters testamentary to Mrs. G. Nolan, named as his executrix, which authorized her to act on behalf of Mr. Nolan’s estate.

In January 1939, Mrs. G. Nolan petitioned a Nebraska court to issue ancillary letters of administration. This was to administer

Executor for a Will in Arizona.

Executor for a Will in Arizona.

Mr. Nolan’s property in that state. She took possession of much of his property there claiming it as her own.

The court ruled that Mr. Nolan’s divorce from Mrs. H. Nolan was void. That made Mrs. H. Nolan Mr. Nolan’s surviving spouse and sole heir at law. She was entitled to a surviving spouse’s allowance through the close of probate. That allowance was Mrs. H. Nolan’s only pecuniary interest in the estate.

Mrs. H. Nolan wanted to be sure there were enough funds in the estate to pay her widow’s allowance. Mrs. G. Nolan charged many expenses to the estate that Mrs. H. Nolan questioned.

Both Mrs. H. Nolan and Mrs. G. Nolan objected to various court rulings about the accounting that was provided regarding Mr. Nolan’s estate. Those issues were taken up on appeal.

The Nevada Estate—Mrs. G. Nolan Appealed as the Estate Executrix and Not In Her Individual Capacity

Some of the issues on appeal involved Mrs. G. Nolan’s actions taken with Mr. Nolan’s property located in Nebraska.

Arizona law provides that when someone dies, title to his personal property passes to his estate and its executor. However, the executor manages only the estate property within the jurisdiction of the probate court. Here, that was the state of Arizona. Mrs. G. Nolan had to get an ancillary administration in Nebraska in order for the Nebraska assets to be probated.

The Nebraska court issued ancillary probate letters to the person Mrs. G. Nolan named. That administrator should have determined what assets Mr. Nolan had there, gathered them and transmitted them to the estate. Instead, Mrs. G. Nolan took possession of the Nebraska property personally. She took $1,548 out of accounts there and sold personal property for some $3,500. She says she did so as the owner, not in her representative capacity. She also collected some debts owing to the estate which she claimed belonged to her as an individual.

Mrs. H. Nolan objected to this pocketing of estate assets by the executrix of Mr. Nolan’s Last Will and Testament. The court found those assets belonged to the estate and charged Mrs. G. Nolan with them.

Mrs. G. Nolan argued in this appeal that the property belonged to her personally. However, she did not take an appeal as an individual, but as an executrix, in her representative capacity. She didn’t file the notice of appeal nor the bond on appeal as an individual. Therefore, the Court did not allow her to argue her individual issues on appeal. It said that she could not use estate assets to appeal from an order affecting her personally.

As the estate administrator, Mrs. G. Nolan could only appeal court rulings detrimental to the estate. The estate benefited by the court’s ruling about the Nebraska property. Therefore Mrs. G. Nolan cannot argue the issue on appeal.

Court’s Jurisdiction to Decide Title to Nevada Property

Duties of Executor of Last Will and Testament in Arizona.

Duties of Executor of Last Will and Testament in Arizona.

Mrs. G. Nolan argues that the probate court didn’t have authority to resolve conflicting claims about property ownership. The Court of Appeals agreed. Generally, a probate court may not litigate title to property claimed by a stranger as against the estate. Instead, the remedy is a separate action. However, “the stranger” in those cases was not the personal representative.

Here the personal representative claims the property does not belong to the estate but to herself individually. If the general rule is applied, Mrs. G. Nolan individually would have to sue herself as executor. Most jurisdictions allow a probate court to determine title to property which the personal representative claims as her own. This is because there is no other clear remedy.

And the probate court has an interest in the accuracy of an executor’s accounts. It, therefore, has jurisdiction to determine whether the executor or the estate owns assets in a probate case.

Attorney Fees Allowed

Another series of issues involved attorney fees. Mrs. G. Nolan hired an attorney in Nebraska to file the petition for probate of the will and publish the necessary notices. For this, she paid him $100, which she charged against the estate. Mrs. H. Nolan objected and the court reduced the credit to $50. The Court of Appeals found no abuse of discretion in this ruling.

Mrs. G. Nolan’s present attorneys represented her in the will contest brought by Mrs. H. Nolan. She paid them $850, but the court disallowed this. In the will contest, one of two people stood a chance to get all of the estate. If Mrs. H. Nolan won, she would take the assets of the estate. If Mrs. G. Nolan won, she would get everything.

Executor Responsibilities for Last Will and Testament.

Executor Responsibilities for Last Will and Testament.

The Court of Appeals determined that Mrs. G. Nolan defended the will as a party standing to inherit, not as executor. She was not trying to preserve the property for the estate but solely for herself. Notwithstanding, the probate court allowed $500 in attorney fees for the will contest. It ordered it charged against the widow’s allowance. The Court of Appeals found this incomprehensible and unnecessary.

Mrs. G. Nolan also asked for $150 in attorney fees for opposing Mrs. H. Nolan’s petition for widow’s allowance. The court properly disallowed this item.

Other Claims

Both Mrs. G. Nolan and Mrs. H. Nolan raised many other issues on appeal regarding probate court rulings regarding the financial accounting of the estate. The Court of Appeals considered and resolved each in turn.

Contact our experienced Arizona Estate Planning Attorneys at (480)947-4339.