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Simplified Probate Proceeding Valid Even Though Fraudulent

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The difficulty and cost of a probate proceeding can make it hard for heirs to collect small estates. Even the court filing fee can be prohibitively expensive if the decedent’s assets are very small. As a consequence most states have some sort of alternative to a full probate proceeding for smaller estates. Most often those mechanisms are not available for real property owned by the decedent. In Arizona, however, even real estate can be transferred to heirs by a simplified proceeding with limited notice and few formalities.

Arizona’s so-called Affidavit of Succession (see Arizona Revised Statutes section 14-3971) proceeding resembles a stripped-down, highly shortened probate proceeding. It does require a court filing, but no formal notice is given to heirs, anyone named in a will or even the decedent’s creditors. It is available only if the decedent’s interest in the real estate was worth less than $75,000.

But what happens when the informality and lack of notice are used improperly? If someone uses the simplified process fraudulently, can they get away with wrongly taking the decedent’s property? A recent Arizona Court of Appeals decision addresses exactly that question.

When Rodney Olson died in 2003, he left three children and a home in Glendale, Arizona. There was a mortgage on the home, and his children got together and decided they would let the property go into foreclosure rather than try to take over the debts. A year later daughter Sherry Vandervort changed her mind; she moved in to the house, paid $11,000 in back mortgage payments and discussed with her brother and sister what it would take for her to acquire the house.

Ms. Vandervort’s brother waived any claims to the house, but her sister wanted her interest bought out. The two women agreed that Ms. Vandervort would pay her sister $25,000 over time, and she would keep the house. Then she turned to refinancing the loan.

Ms. Vandervort’s lawyer had the other two siblings sign quit-claim deeds to her, then he prepared and filed an Affidavit of Succession under Arizona’s simplified proceeding. In the Affidavit she alleged that she was the sole heir of her father’s estate; because of the nature of the simplified proceeding, no additional notice was given to the other two heirs. Based on the inaccurate filing, title was transferred to Ms. Vandevort’s name and she refinanced the property.

When Ms. Vandervort’s sister became upset about not getting payments on her agreed-upon $25,000, she initiated a full probate proceeding and sought to set aside the Affidavit insisting that it was inaccurate and in fact fraudulent. The holder of the note signed by Ms. Vandervort objected, arguing that the proceeding had appeared valid, and that any misrepresentation or fraud had been committed by others; the lender claimed not to have been aware of any flaws in the simplified proceeding.

The trial court invalidated the Affidavit but agreed that the lender’s claim should be enforceable at least to the extent of the original loan amount. That left the lender out of luck as to the rest of the refinancing.

The Court of Appeals reversed, ruling that the full loan was valid and affirming the Affidavit of Succession as against innocent third parties. The proceeding was fraudulent (because Ms. Vandervort swore to an inaccurate statement about the estate’s heirs), according to the appellate court. The property should be drawn back into the estate and handled appropriately. But because the lender was not involved in the misrepresentations, the full amount of the loan should be a valid encumbrance against the property now to be held as part of the estate. Beck v. Deem, January 14, 2010.

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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.