This probate opinion demonstrates once again the evil of footnotes.

“The issue for decision is whether, in an unsupervised administration, an order requiring nonprobate transferees to pay a pro rata share of estate taxes is appealable under § 12-2101(J).” The issue is actually whether, in an unsupervised administration, an order on a petition for instruction  — whether about taxes or anything else – is appealable under § 12-2101(J). But that would have telegraphed the result since the question almost answers itself.

McGathy’s PR petitioned the Superior Court for instructions on who should pay the taxes. The court ruled on that and included Rule 54(b) language.  An unhappy beneficiary appealed. The Court of Appeals dismissed it sua sponte, ruling that only the final decree distributing an estate is appealable, and then refused a joint motion for reconsideration. The parties filed a joint petition for review.

The Court of Appeals relied on a 1979 Arizona Supreme Court case that was almost directly on point – except that it dealt with supervised administration. Supervised administration follows the old rule that the trial court has jurisdiction until the decree of distribution. But in unsupervised administration there isn’t a decree of distribution (basically, the PR distributes and then files an accounting). When the Uniform Probate Code brought us unsupervised administration  it also changed the appeal statute to allow appeal from a “judgment, decree or order entered in any formal proceedings under title 14,” 12-2101(J). A petition for instruction is a formal proceeding and each such formal proceeding is, under the probate rules, separate. The trial court’s order on the taxes ended that formal proceeding. The order was therefore appealable.

The Supreme Court vacates the dismissal of the appeal and remands to the Court of Appeals.

It’s hard to see how the Court of Appeals got this one wrong unless it felt that the earlier case was close enough that the Supreme Court would have to make the call. (We presume that this wasn’t one of those setups designed to make some law for a niche practice since the parties needn’t in that case have bothered to ask for reconsideration.)

This is a clear, brief opinion marred only by a we-must-be-right-because-other-courts-think-so-too paragraph and, mostly, by two long footnotes near the end.

The first footnote suggests consolidation to avoid multiple appeals from multiple formal proceedings. We’re not fans of footnotes trying in advance to administer to the procedural problems the opinion will create; lawyers and trial judges can figure things out. But if this had to be done, a brief parenthetical clause could have done it better.

In the second footnote, someone either got mixed up or is trying to pull a fast one. It purports to mention – and, effectively, to overrule – some language in an earlier Court of Appeals case. But the language actually comes from the Arizona Appellate Handbook (which the footnote does at least mention, in passing, in parentheses) based on the same Supreme Court opinion that the Court of Appeals relied on. If this is a backhanded way of criticizing the Court’s own case then it should of course be done fore-handedly, so to speak. It’s not as if Justice Struckmeyer will be offended and dis-invite you to his next barbecue; he has passed to his reward. In any event, if the language – wherever it comes from  — is important enough to warn against then it is important enough to address in the body of the opinion. Surely the opinion should have said something like “the Arizona Appellate Handbook is wrong – or, at least, misleading – about this.” Especially since the Handbook still says the same thing, and has for almost thirty years.

(link to opinion)