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Legally Required Notice in Probate Court

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Legally required notice

Legally-required notice rules in probate proceedings are straightforward. They mandate mail notice or personal service on interested parties. The person filing a probate proceeding usually must publish notice in the newspaper, as well. But what if they don’t know how to reach other family members?

Ana Maria Norman’s Estate

When Ana Maria Norman died in San Luis, Arizona, her daughter Mayanin had been taking care of her for several months at her home in Arizona. But Mayanin actually lived in Hidalgo, Mexico, and she returned to her home after her mother’s death.

Before her death, Ms. Norman transferred assets to Mayanin’s name, including her home in San Luis, a small (but growing) town on the Arizona/Sonora border. After her 2020 death, another daughter, Celia, filed to be  as personal representative of their mother’s estate, and she quickly filed suit against Mayanin. Celia alleged that Mayanin had exploited their mother, and sought to set aside transfers of assets from Ms. Norman to Mayanin.

On filing the lawsuit, Celia was legally required to give notice to Mayanin. The two had not had contact for several years. Celia mailed her lawsuit to Mayanin at their mother’s home address. She even hired a process server to visit the house, but no one was there. Then she hired a private investigator to find her sister’s address.

The private investigator told Celia that Mayanin had no address in the United States, but that she might be a citizen (and resident) of Mexico. In fact, it appeared that she might be a professor and the Regional Liaison for the Secretary of Education in a town in Hidalgo, Mexico. The investigator even gave Celia a copy of the Hidalgo phone directory showing a phone number and work address for someone with the same name, but the first two names reversed. Celia made no further attempts to track down the similarly-named Mexican national.

Celia tries an alternative notice approach

Celia’s lawyers then arranged to have her complaint against Celia published in the Yuma Sun, the main local newspaper. Legally-required notice rules permit newspaper publication in some circumstances. Her lawyers asked the court to rule that newspaper publication was sufficient.

All of this took place pretty quickly. Ms. Norman had died in February. Celia was appointed personal representative of the estate in May. The lawsuit was filed in August, and mailed to Ms. Norman’s house on November 15. The lawsuit was published in the newspaper on November 16, 17 and 18. Celia’s lawyers arranged for the process server to visit Ms. Norman’s empty house on November 23. They sent another letter to Ms. Norman’s address — this time by certified mail — on that same date. The court hearing was two weeks later, on December 8.

At the court hearing, Celia and her lawyers argued that they could not find Mayanin, and that the alternate service method should be sufficient. The probate court agreed.

Ultimately, the probate court granted Celia her requested relief. The deed from Ms. Norman to Mayanin (signed in 2015) was invalidated. And the court entered judgment against Mayanin for $535,000 for her alleged exploitation of her mother.

Mayanin learns of the judgment

It wasn’t until three months later that Mayanin learned of the proceedings against her. She found out after Celia changed the locks on the house in San Luis. She promptly moved to set aside the judgment, arguing that the legally-required notice had not been given.

Mayanin produced a picture of Celia visiting her at her home in Mexico fifteen years before their mother’s death. She insisted that she had lived at the same address for a quarter-century. She even visited her sister Celia in North Carolina in 2016. And she noted that Celia did not appear to have asked any of their other five siblings about where Mayanin could be located. All-in-all, she insisted, Celia had not provided her with the legally-required notice so that she could respond to the lawsuit. And, since Mayanin was in fact a Mexican national, she had also failed to comply with notice requirements imposed by the Hague Convention on lawsuits between people from two different countries.

The Yuma judge was not impressed. He ruled that there was no reason for Celia to believe that her sister was a foreign national, and she had followed the rules for legally-required notice.

Mayanin’s appeal

After that loss, Mayanin appealed to the Arizona Court of Appeals. She argued that Celia had — or should have easily figured out — plenty of evidence about her nationality and even her address. Her own private investigator had located Mayanin and given Celia’s lawyers the information. Publication in a newspaper was not sufficient to meet the legal requirements for notice.

The appellate court agreed. In a Memorandum Decision (that is, one decided without establishing legal precedent), the court decides that simple newspaper publication does not meet the legally-required notice standards. At least, not when there is such an abundance of evidence in the plaintiff’s hands to show how to actually get notice to the defendant. Estate of Norman, December 13, 2022.

But aren’t the rules different in probate court?

Well, yes. Sort of.

Arizona’s probate rules do require publication of notice in probate proceedings in several circumstances. And the probate statutes explicitly authorize notice by publication if “the address or identity of any person is not known and cannot be ascertained with reasonable diligence”. And another probate statute requires publication of notice before the formal appointment of a personal representative. But those are statutory minimum requirements. Arguably, they are not so much about giving actual notice as they are about letting the world know that there’s something going on. Legally-required notice to litigants is usually more precise, and more targeted at getting copies of legal pleadings actually into their hands.

For example, imagine someone who seeks appointment as personal representative of their father’s estate. Perhaps they know that their brother once lived in Michigan. But they have had no contact for decades, and genuinely do not know where they live today.

Do they have to publish notice in Michigan newspapers?

Not according to Arizona statutes. The legally-required notice to initiate a probate is simply publication in the county where the probate is filed. In Tucson, the county seat of Pima County, that might (and often does) mean publication in the Ajo Copper News. That is sufficient, even though the paper’s offices are 132 miles from the probate court’s courtroom. And that’s almost 2,000 miles from the nearest point in Michigan. Will your brother read it? Not too likely, unless he has unusual hobbies.

On the other hand, if you want to sue your brother as part of the probate proceedings, you’re going to have to give him a more effective version of the legally-required notice. Don’t allege you don’t know where he is without actually looking for him, asking other family members, calling the phone number he listed when he wrote to you five years ago, and otherwise actually making an effort.

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Robert B. Fleming


Robert Fleming is a Fellow of both the American College of Trust and Estate Counsel and the National Academy of Elder Law Attorneys. He has been certified as a Specialist in Estate and Trust Law by the State Bar of Arizona‘s Board of Legal Specialization, and he is also a Certified Elder Law Attorney by the National Elder Law Foundation. Robert has a long history of involvement in local, state and national organizations. He is most proud of his instrumental involvement in the Special Needs Alliance, the premier national organization for lawyers dealing with special needs trusts and planning.

Robert has two adult children, two young grandchildren and a wife of over fifty years. He is devoted to all of them. He is also very fond of Rosalind Franklin (his office companion corgi), and his homebound cat Muninn. He just likes people, their pets and their stories.

Elizabeth N.R. Friman


Elizabeth Noble Rollings Friman is a principal and licensed fiduciary at Fleming & Curti, PLC. Elizabeth enjoys estate planning and helping families navigate trust and probate administrations. She is passionate about the fiduciary work that she performs as a trustee, personal representative, guardian, and conservator. Elizabeth works with CPAs, financial professionals, case managers, and medical providers to tailor solutions to complex family challenges. Elizabeth is often called upon to serve as a neutral party so that families can avoid protracted legal conflict. Elizabeth relies on the expertise of her team at Fleming & Curti, and as the Firm approaches its third decade, she is proud of the culture of care and consideration that the Firm embodies. Finding workable solutions to sensitive and complex family challenges is something that Elizabeth and the Fleming & Curti team do well.

Amy F. Matheson


Amy Farrell Matheson has worked as an attorney at Fleming & Curti since 2006. A member of the Southern Arizona Estate Planning Council, she is primarily responsible for estate planning and probate matters.

Amy graduated from Wellesley College with a double major in political science and English. She is an honors graduate of Suffolk University Law School and has been admitted to practice in Arizona, Massachusetts, New York, and the District of Columbia.

Prior to joining Fleming & Curti, Amy worked for American Public Television in Boston, and with the international trade group at White & Case, LLP, in Washington, D.C.

Amy’s husband, Tom, is an astronomer at NOIRLab and the Head of Time Domain Services, whose main project is ANTARES. Sadly, this does not involve actual time travel. Amy’s twin daughters are high school students; Finn, her Irish Red and White Setter, remains a puppy at heart.

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Matthew M. Mansour


Matthew is a law clerk who recently earned his law degree from the University of Arizona James E. Rogers College of Law. His undergraduate degree is in psychology from the University of California, Santa Barbara. Matthew has had a passion for advocacy in the Tucson community since his time as a law student representative in the Workers’ Rights Clinic. He also has worked in both the Pima County Attorney’s Office and the Pima County Public Defender’s Office. He enjoys playing basketball, caring for his cat, and listening to audiobooks narrated by the authors.