A.R.S. 14-3709 Interpretation
In In re Estate of Jorgenson the Court concluded that A.R.S. 14-3709 (2005) is ambiguous. 159 Ariz. 214, 216, 766 P.2d 87, 89 (App. 1988).
Section 14-3709 authorizes a personal representative to take possession of the property of the estate if he or she believes it is necessary for purposes of administration. A.R.S. 14-3709(A); In re Estate of Jorgenson, 159 Ariz. at 215, 766 P.2d at 88.
The statute also allows a personal representative to "maintain an action to recover possession of property or to determine the title thereto." A.R.S. 14-3709(A).
The statute does not, however, transfer or confer ownership of the decedent's property to the personal representative, but merely allows that person to "take possession or control of" the property pending the administration of the estate. Id.
A.R.S. 14-3709. Duty of personal representative; possession of estate; discovery of concealed assets.
A. Except as otherwise provided by a decedent's will, every personal representative has a right to, and shall take possession or control of, the decedent's property, except that any real property or tangible personal property may be left with or surrendered to the person presumptively entitled to it unless or until, in the judgment of the personal representative, possession of the property by the personal representative will be necessary for purposes of administration.
The request by a personal representative for delivery of any property possessed by an heir or devisee is conclusive evidence, in any action against the heir or devisee for possession of the property, that the possession of the property by the personal representative is necessary for purposes of administration. the personal representative shall pay taxes on, and take all steps reasonably necessary for the management, protection and preservation of, the estate in the personal representative's possession. the personal representative may maintain an action to recover possession of property or to determine its title.
B. If the personal representative or other person interested in the estate of a decedent complains to the court, on oath, that a person is suspected of having concealed, embezzled, conveyed or disposed of any property of a decedent, or possesses or has knowledge of deeds, bonds, contracts or other writings which contain evidence of or tend to disclose the right, interest or claim of a decedent to any property, or the will of a decedent, the court may cite that person to appear before the court and may examine that person on oath on the complaint.
If that person is not in the county where letters have been issued, the person may be cited and examined before the court in the county where the person is found or the court issuing the citation. If the person appears and the court determines that the claim is unfounded, the court shall allow that person necessary expenses out of the estate.C. If the person cited as provided by subsection B refuses to appear and submit to an examination, or to answer questions relevant to the complaint, the court may commit that person to jail until the person submits to the order of the court or is discharged according to law.D.
If on examination or from other evidence adduced at the hearing it appears that a person has concealed, embezzled, conveyed or disposed of any property of a decedent, or possesses or has knowledge of deeds, bonds, contracts or other writings tending to disclose the right, interest or claim of a decedent to any property, or the will of a decedent, the court may order that person to turn over the documents or disclose knowledge to the personal representative and may commit the person cited to jail until the order is complied with or the person is discharged according to law.
The examination shall be reduced to writing and filed in court. the order for the disclosure made on this examination is prima facie evidence of the right of the personal representative to the property in an action brought for recovery of that property, and a judgment shall be for double the value of the property, or for return of the property and damages in addition to the property equal to the value of the property. the court may also award reasonable attorney fees and costs.