Having Problems With A Fiduciary?

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A Personal Representative of an estate, a Trustee of a trust, and a Conservator for a protected person (also referred to as a Ward) are all fiduciaries who owe duties to the people whose assets are being managed by them. These fiduciary obligations require that the fiduciary act diligently, fairly, and keep detailed records. It is a high standard of care that all too often is not lived up to.

So, what can you do if a Personal Representative, Trustee or Conservator is not doing his/her job?

First and foremost, communicate with them and keep records of your communication. If you have a fiduciary who is not responding, you need to document that lack of communication (and all other facts about the estate/trust). Among litigators, if it often said that “if it can’t be read, it wasn’t said” – an adage which aptly points to the reliability of written documentation versus relying strictly on memory – not to mention the propensity for the opposing party to conveniently forget or alter important details. Make sure you document everything in writing.

Second, you need to get familiar with your rights because this provides leverage. If you are an heir in an estate, you should become familiar with the decedent’s Will (if there is one). You should also review the probate statutes regarding testate and/or intestate division of assets and administration of estates under A.R.S. Title 14. If you are a beneficiary (or even a co-trustee) of a trust, you need to become familiar with the Trust itself, and the Arizona Trust Code (A.R.S. 14-10101 and following). Reading every word of the Trust is not the most fun you will ever have – but it is important. Those portions that are unclear or not understood should be reviewed with a competent attorney who can help explain the trust’s finer points. If you are a family member or friend concerned about a Ward subject to a Conservatorship, you should become familiar with the conservatorship statutes under A.R.S. 14-5101 and following. You should also obtain and review court orders which govern the Conservatorship. (To be continued….)

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