If Anyone's Listening, Here's a Way to Cut Through the Competing Probate Noise

For anyone not already tone deaf with a case of earsplitting self-interest, a court-appointed attorney in Maricopa County, Arizona’s Probate Court offers his own cogent solution to what’s become a contest of the dueling probate reformers at the state capitol. The attorney’s name is Jon D. Kitchel and he’s in private practice.

Currently, two bills, one from the state senate and the other from the state house, are vying to conjure up ‘the better prescription’ to cure what’s been ailing the local probate court.

Senate Bill 1499 is supported by the courts, probate lawyers, the fiduciaries and other interested stakeholders. The other is House Bill 2424, which is promoted by activists and family members of wards who’ve run up against the buzz saw and are still licking wounds from the experience.

Jon Kitchel’s “Open Letter” is as follows:

“.....The Legislature is currently considering alternatives that might improve the system. Here are three substantive changes the Legislature could make to improve our system:

First, require fiduciaries to provide regular financial reports to wards or their counsel if they choose to receive them. Current statutes require a conservator to file an annual accounting listing income and expenses a year after the money is gone. It’s not possible for anyone to monitor an estate without regular financial reports.

“Second, reduce (or eliminate) the barrier to fiduciary substitution. Sometimes a relationship between a fiduciary and ward is unproductive. It may be too expensive or it may simply be a personality conflict. Under our current system, only the court may determine if that relationship should be ended. That determination is made after expensive litigation in which both sides of the conflict are paid from the ward’s estate.

A better system would allow a ward (as often as once a year) to ask the court to appoint a successor fiduciary for any reason. Fiduciaries, like anyone else, should have to compete for business based on price and performance. If another qualified fiduciary is available and willing to serve (consistent with the ward’s best interests) the court should be required to appoint a successor.....

Third, if a ward is paying the bill, the person being paid should have a primary duty to the ward. That includes both the fiduciary and the lawyer hired by the fiduciary with the ward’s money. A fiduciary and his attorney should not be keeping secrets from the ward while charging the ward for doing so....

...Arizona’s legislature could take a large step forward to real probate reform by stepping on a few bureaucratic toes and granting Arizona’s wards three basic rights: the right to receive regular financial reports, the right to elect substitution of a fiduciary for any reason, and the right to expect all professionals paid by the ward to put the ward’s interests first.”

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If Anyone's Listening, Here's the Way to Cut Through the Competing Probate Noise at the AZ Legislature