Experienced Arizona Ancillary Probate and Trust Attorney Arizona Ancillary Probate Lawyer Matthew L. Howell Attorney at Law
Arizona Real Estate Trust Attorney
Arizona Ancillary Probate Specialist

Frequently Asked Questions And Answers for:

Ancillary Conservatorship in general

  1. WHAT IS THE PROBLEM? -- You or a family member, friend, or a client is a non-Arizona resident who owns Arizona property. The owner is a legally incapacitated person, namely a "minor" or a "legally incapacitated adult", and therefore needs a conservator to legally manage that property. What is the best way to handle the Arizona conservatorship?

  2. WHAT IS CONSERVATORSHIP? -- In Arizona an unmarried minor (under age 18), or an adult incapacitated due to physical or mental disability, or confinement, detention, or disappearance, who has Arizona property that cannot otherwise be legally managed, may need to have a court appointed conservator to manage that property.

  3. WHAT IS ANCILLARY VS. DOMICILIARY CONSERVATORSHIP? -- Court appointment of a conservator to administer the minor or legally incapacitated adult's personal and real property held in that person's state (or foreign country) of residence is called "domiciliary [foreign] conservatorship"; conversely, court appointment of a conservator (or the court's recognition of a domiciliary conservator) to manage the legally incapacitated person's property located in a state (or foreign country) where the decedent does not reside is called "ancillary [local] conservatorship".

  4. IS ALL PROPERTY SUBJECT TO ARIZONA ANCILLARY CONSERVATORSHIP? -- No! In Arizona ancillary conservatorship is necessary only to appoint a person to administer Arizona property that "cannot otherwise be legally managed"; therefore, if the legal title to Arizona property is in legally effective alternative forms of ownership, a court appointed conservator may not be necessary; alternate management arrangements may include: (a) trustee; (b) custodian under the uniform transfers/gifts to minors act; (c) attorney-in-fact under a durable power of attorney; (d) annuity manager; (e) agent; (f) social security representative payee; (g) attorney-in-fact under a parent-designated (durable) power of attorney for their minor child's property; (h) parent or guardian's statutory collection of minor's property, not exceeding $10,000.00; (i) joint tenancy; or (j) tenancy in community property.

  5. WHAT PROPERTY IS SUBJECT TO DOMICILIARY VS. ANCILLARY CONSERVATORSHIP? -- The legally incapacitated person's property (both real and personal) physically located in the state (or country) of the decedent's residence is subject to domiciliary conservatorship; the legally incapacitated person's property (both real and personal) physically located in the state (or country) of the decedent's non-residence is subject to ancillary conservatorship; note, however, if a domiciliary conservator is already appointed, then (absent litigation) that conservator can usually exercise power over the Arizona (tangible and intangible) personal property without Arizona ancillary conservatorship.

  6. WHAT ARIZONA COURT PROCESS IS REQUIRED FOR ANCILLARY CONSERVATORSHIP? -- If a domiciliary conservator (or guardian or like fiduciary) is already appointed, then under A.R.S. §14-5431: (a) that conservator can collect intangible or tangible personal property from an Arizona custodian upon presentment of an "Affidavit of Domiciliary Conservator" stating that: (i) no Arizona conservatorship is pending and that (ii) the domiciliary conservator is legally entitled to payment or delivery of the property--the custodian who does not know of any pending Arizona conservatorship is legally discharged upon payment to the domiciliary conservator, or under ARS §14-5432 (b) if no ancillary conservatorship is already pending, that conservator can file in the Arizona Superior Court a "Proof of Appointment of Domiciliary Conservator" along with certified copies of his domiciliary court appointment and any official bond he has given, and thereafter exercise all powers of an Arizona conservator; if no domiciliary conservator is appointed, then "regular" court ancillary conservatorship proceedings are required.

  7. WHAT PROCEEDINGS ARE REQUIRED FOR REGULAR CONSERVATORSHIP PROCEEDINGS? -- If a court appointed conservator is required, and no domiciliary conservator can act under procedures described in #6 above, then regular Arizona ancillary conservatorship is required; thus appointment proceedings commence either under "testamentary appointment" or "court appointment";

    (a) TESTAMENTARY APPOINTMENT occurs when a deceased parent nominates a conservator in his or her will to manage the property of a minor or legally incapacitated (unmarried) adult; or a deceased spouse nominates a conservator in his or her will to manage the property of the incapacitated adult spouse--in either case the conservator nominee files both the decedent's will for probate along with a formal acceptance, and must provide written notice of the acceptance to the minor or legally incapacitated adult and also to either the person having the ward's care or the ward's nearest adult relation; absent objection, the appointment becomes final;

    (b) COURT APPOINTMENT occurs when a formal petition for appointment of a conservator is filed with the court; (i) to appoint a conservator for an adult, as well as both a qualified medical examiner and independent court examiner to report that the adult is incapacitated, and to also appoint an attorney to represent the adult; after notice and hearing on the petition is held, and court appointment, a surety bond is provided in the full amount of non-court restricted assets, and also upon acceptance, the conservator may assume conservatorship duties--thereafter an annual accounting, surety bond and asset management plan must be provided; (ii) to appoint a conservator for minors the procedure is the same except no physician and court examiner statement is required and (absent objection) no attorney is appointed to represent the minor ward.

  8. ARE THERE ANY OTHER PROCEDURES TO SIMPLIFY CONSERVATOR ANCILLARY APPOINTMENT IN REGULAR PROCEEDINGS? -- Yes! If basically only a single court action is necessary to provide effective property management a conservatorship appointment and further conservatorship proceedings may not be necessary. In this case the court, upon petition may "direct or ratify any transaction necessary or desirable to achieve any security, service, or care arrangement meeting the foreseeable needs of the [minor or adult] protected person." Examples of such action include proceeding to (a) permit payment, delivery, deposit or retention of funds or property; (b) permit the sale, mortgage, lease, or other transfer of property; (c) approve annuity or life care deposit contracts or contracts for training and education; (d) establish or permit additions to trusts.

  9. HOW DO I DETERMINE WHAT ANCILLARY CONSERVATORSHIP IS NECESSARY IN ARIZONA? -- Complete the questionnaire directly below and contact MATTHEW L. HOWELL, the Arizona Ancillary Probate Lawyer. Contact Matthew L. Howell

  10. DO I NEED TO TRAVEL TO ARIZONA TO BEGIN ANCILLARY PROBATE PROCEEDINGS? -- No! Absent litigation, contact with the Arizona attorney, including preparation, signing and filing of legal documents with the court, can all be handled by phone, fax, email or regular mail, so no trip to Arizona for that purpose is necessary.

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