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Personal Liability for Acting as Personal Representative

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Personal Liability

When you agree to act as personal representative of a decedent’s estate, do you take on any potential personal liability? Generally not, but you should make sure everyone knows that you are acting as a fiduciary. A recent Arizona case illustrates the risk if you do not.

Estate’s property is sold

When Gary Barnes (not his real name) died, he owned a home in the Phoenix area. A probate proceeding was initiated, and two women (we’ll call them Mary and Susan) were named as personal representatives.

Arizona, like a number of other states, uses the term “personal representative” in place of the old-fashioned “executor”. The powers and duties are the same; the term is just updated. Mary and Susan were thus put in charge of collecting Gary’s assets, paying his bills and settling his estate.

One thing Mary and Susan did was to list Gary’s home for sale. They received an offer from a prospective buyer; the offer listed Gary as the seller. Mary and Susan signed the sales agreement, where the form indicated, as “sellers”. They did not list their role as personal representatives.

Before the real estate closing, the buyer sent a letter to the escrow officer listing deficiencies in the house. He asserted that the sellers had failed to cure the problems indicated. Still, he made the final payment to purchase the house.

At the real estate closing, Mary and Susan signed the transfer documents as personal representatives of Gary’s estate. Their authority was clearly indicated, including the estate’s probate court file number.

The estate closes, and problems develop

Although the reason is not clear from reading the later appellate court decision, it took five years before the probate case was concluded. In 2012, Mary and Susan filed their final closing documents with the probate court. As Arizona probate law provides, a year later Gary’s estate was deemed to have been completed.

Sixteen months after the final probate documents had been filed, the home buyer filed a petition to reopen the probate proceeding. He argued that he still had unresolved claims against the estate. Those claims arose, he argued, from the failure to resolve his assertion that various items in the house were transferred in non-working order. The probate court denied his request to reopen the estate; the buyer appealed, and the Arizona Court of Appeals affirmed the denial. The probate proceeding was done, and the buyer’s claims (if any) were too late to be addressed.

Meanwhile, the buyer also sued the estate — and also Mary and Susan. The lawsuit named Mary and Susan as personal representatives of the estate, but also in their individual capacities. How could they be liable individually? The lawsuit claimed that they were acting as individuals when they signed the sales agreement without disclosing their status as personal representatives.

The trial judge considered the timing issues and dismissed the buyer’s lawsuit. It was too late to file any claim in the probate, reasoned the judge. Besides, that issue was ultimately resolved (against the buyer) by the Court of Appeals — with regard to the probate, anyway.

Claim against the personal representatives

The buyer appealed. He argued that, even though he could not make a claim against the estate, the personal representatives had personal liability for their actions. Because they filed to identify themselves as personal representatives on the purchase contract, he reasoned, they could be sued personally.

The Arizona Court of Appeals agreed with the home buyer, at least in part. The appellate judges ruled that the buyer’s lawsuit was properly dismissed — except as to the personal liability claims against Mary and Susan.

Arizona probate law is clear. The personal representative of a probate estate does not have personal liability — provided that the relationship is identified. If Mary and Susan had signed the purchase contract as personal representatives, the lawsuit against them personally would also have been dismissed.

It was not enough, according to the Court of Appeals, that the contract identified the seller as Gary, and that someone other than Gary was signing on his behalf. The probate statutes require that the relationship must be clearly spelled out.

How might Mary and Susan have accomplished this? Each could have signed her own name, followed by “as personal representative of the estate of Gary, deceased” on the signature line. That, in fact, was approximately how their signatures on the deed read.

But didn’t the buyer have notice of the fact of a probate proceeding (and Mary and Susan’s roles) when he received his deed, which they signed as personal representatives? Yes — but that was after the contract was entered into.

What next?

The Court of Appeals reversed the dismissal of the buyer’s claims against Mary and and Susan. The case was remanded to the trial court for further proceedings. After remand, the trial court was instructed to dismiss any claim the buyer made, or attempted to make, against the estate or against Mary and Susan as personal representatives of the estate. But any claims he might have against them individually will have to be resolved by settlement, trial — or dismissal on other grounds. Gordon v. Estate of Brooks, May 30, 2017.

Would the same principle apply to conservators, trustees, guardians and other fiduciaries? Probably, though the statute on which the Brooks case relied is specifically a probate statute. Still, it is clear that the better course is to make sure your fiduciary capacity is clearly indicated any time you sign a document. That should help minimize the likelihood of personal liability.

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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.

Famous people's wills

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.