What is a De Facto Personal Representative?
In Arizona, and perhaps in other states, a court can hold a person liable for managing a deceased person’s estate even prior to being appointed as personal representative. I refer to such a person as a “de facto personal representative.” Under Arizona law, such liability arises according to a combination of A.R.S. § 14-3701 and the court’s inherit equitable powers. Such a liability can arise, for example, when someone is nominated as personal representative in the deceased person’s Will, but that person decides it is more beneficial personally to take no action (sometimes failing to probate the Will for years) and simply hold onto estate assets for personal gain. Such a person can be held accountable as a “de facto personal representative” for failure to abide by the duties of a personal representative, even prior to the person being officially appointed by the court.
The Arizona Probate Code specifically authorizes certain actions by a person acting as Personal Representative prior to appointment, thus essentially creating the possibility of a “de facto Personal Representative.” A.R.S. § 14-3701 (“Time of accrual of duties and powers”) provides:
The duties and powers of a personal representative commence on appointment. The powers of a personal representative relate back in time to give acts by the person appointed which are beneficial to the estate occurring prior to appointment the same effect as those occurring thereafter. Prior to appointment, a person named personal representative in a will may carry out written instructions of the decedent relating to the decedent’s body, funeral and burial arrangements. A personal representative may ratify and accept acts on behalf of the estate done by others where the acts would have been proper for a personal representative.
(Emphasis added.)
Courts in other states have interpreted similar statutes as creating a “de facto Personal Representative,” and have found such a person liable for failing to live up to the fiduciary duties of a Personal Representative. See, e.g., Footnote 15 of In re Estate of Bryant v. Bryant, 793 A.2d 487, 493 (D.C. 2002), which states:
While Ms. Bryant had yet to be appointed formally to serve as personal representative, D.C. Code § 20-505 (1981 and 1989 Repl.) provided that “acts which by statute are authorized to be done without prior Court approval after the issuance of letters but which in fact were committed by the personal representative prior to issuance of letters, when done in good faith, shall have the same effect as acts occurring after the issuance of letters.” A personal representative is authorized to pay valid claims and distribute the estate without first obtaining court approval. See D.C. Code §§ 20-701 (a), 20-741 (r) (1981 and 1989 Repl.). The trial court found no genuine dispute (and we agree) that Ms. Bryant acted in good faith, and without obtaining any improper personal advantage, when she transferred the funds to Charles Bryant to enable him to pay partnership creditors. Thus we treat that act as that of a de facto personal representative, and evaluate it against a personal representative’s legal obligations.
(Emphasis added.)
However, the Arizona statute (A.R.S. § 14-3701) only discusses powers of a de facto Personal Representative, and not the person’s responsibilities. Section 14-3701 states, “[t]he powers of a personal representative relate back in time to give acts by the person appointed which are beneficial to the estate occurring prior to appointment the same effect as those occurring thereafter.” Does this mean, for example, that someone acting as personal representative following appointment is held to the fiduciary duties of acting in the best interest of the successor of the estate, but that same standard does not apply to someone who, prior to appointment takes control of estate assets (such as the deceased person’s house), treats those assets as her own, fails to tell the rest of the family that they have an interest in the estate, and/or fails to collect rent (and hold it for the rest of the family)?
Such a result would make no sense. That is essentially what the Estate of Bryant case holds. And it seems ludicrous to think that an Arizona court would decide this case any differently.
If you know of someone who has failed to act responsibly regarding a deceased person’s estate (prior to that person being appointed as a Personal Representative), you should contact a probate litigation attorney right away. You may be able to have a court hold that person to the same standard as an appointed Personal Representative, including the duties to serve the “best interests” of the successors to the estate, and to act with fairness and impartiality to the other heirs and devisees (beneficiaries of a Will).
