Arizona Estate Planning & Probate

Arizona Estate Planning & Probate

Information on Estate Planning, Probate, and Estate Litigation

Crazy Happens in Estates

Posted in Other Articles

Three people are alleged to have dug up a grave of a man, ten years after he died, looking for the “original will”.

The stories of fights over inheritances are everywhere, and touch almost every family personally. When I began practicing, it all seemed so strange. I frequently was surprised by what I didn’t understand. The behavior was unexpected, but I always saw the raw emotion that drives people to do things that they wouldn’t ordinarily do.

This grave robbing example would have surprised me. I would have thought “What were they thinking?”  After years of practicing, nothing surprises me because I’ve seen the raw emotion and sometimes the crazy conspiracy theories that cement themselves in the minds of people.

When I read it, I thought to myself, there are some people whose emotions were so strong that it overcame even their best judgment.

As I practice, I try to keep in mind that we are dealing with people, not estates. And, there are ways to minimize and reduce conflict to avoid inflaming already “hot” and “raw” emotions.


Care Managers

Posted in Estate Planning, Guardianship, Other Articles

Katherine C. Pearson, of Elder Law Professor  shares a story about a friend deciding to hire a Geriatric Care Manager for father to age in place instead of her and her siblings caring directly for the father.

Children want to protect and care for their aging parents. Often, the choice is for one child to take the responsibility for caring for their mother or father. However, it often doesn’t fit into the family dynamics and and situation. Children are also not normally equipped with the specialized knowledge and skills to care for their elderly parents. It is a steep learning curve when a son or daughter steps into the role of caregiver.

Geriatric Care Managers are the bridge between the gap in availability and knowledge. The successful story pointed out by Ms. Pearson in her blog highlights the benefits a care manager can bring. I personally see the value brought to aged and infirm by professional care managers every day.

Even if it the children provide direct care, the assistance of a care manager can be invaluable.

Estate Planning Principles Have Changed

Posted in Estate Planning, Other Articles, Power of Attorney, Wills

In the past, a will and power of attorney was all that was needed for estate planning. However, life has become more complex and society has become more litigious. So, a will and power of attorney are no longer sufficient.

People complete estate planning so that power over their life and assets, whether because of illness or death, is transferred to someone they trust. Now, that requires more than a will and power of attorney to be effective. The idea that a will and power of attorney is enough traps many children and families with increased costs and increased stress. Banks and other institutions are not honoring power of attorney documents prepared outside of the bank or institution, even when they are valid. They don’t want the potential liability that arises from the transaction.

Many times, court action costing tens of thousands of dollars are necessary when they refuse to accept an agents authority under the power of attorney. Living revocable trusts gained in popularity because it avoided the costs of probate. Now, living revocable trusts are showing even greater value to avoid the costs of court action, that most often take the form of a conservatorship action.

The revocable living trust is the most practical solution for the costs of conservatorship, in the same way that a living trust avoids the costs of probate. If the original trustee becomes incapacitated, the successor trustee can go to the bank and obtain control over the account. It really is that simple. But, it requires that the bank is informed of the trust and the account is owned by the trustee.

Switched signatures on wills

Posted in Estate Planning, Other Articles, Probate, Will Contest

We all make errors, but this one was a doozy. Robert C. Adamski wrote about a case in the United Kingdom where a couple accidentally signed each others wills instead of their own.  Two biological sons and an informally adopted son fought over the validity of the wills. The judge ruled that the wills were still valid.

It is amazing the errors and the confusion I’ve seen in estate plans. Most errors can be corrected or worked out. But, as seen by this situation, it is unfortunate that it was only corrected after court litigation.

Many cases I’ve handled were resolved only after a protracted lawsuit. An ounce of prevention is worth a pound of cure, so check your documents. I often perform free reviews of estate plans, and review what will happen when they are needed. Many times, what clients think will happen is not exactly what is written in the trust or will.


POA and Banks

Posted in Estate Planning, Other Articles, Power of Attorney, Trusts

What if a bank or some other institution will not accept a valid Power of Attorney?

As an estate planning attorney in Arizona, I’ve seen many situations where banks and other institutions have refused to honor a Power of Attorney that I drafted and executed for a client.  The situation can begin when a family member calls to tell me that their loved one, my client, has become incapacitated. After reviewing the medical statements that my client is incapacitated, I instruct the family member on the steps they should take.

One of the steps includes going to the bank to gain control of the assets. Later, I receive a call from the family member, stating that the bank won’t honor the power of attorney. Over the last years, I’ve seen this situation repeat itself over and over again. Recently, I’ve even heard where a real estate title insurers that won’t provide a title insurance policy if an agent under a power of attorney wants to sell a home. They are afraid of being sued later if the power of attorney is found to be invalid. They feel they are better off refusing to honor it.

If a bank or title insurance policy refuse to honor a legal power of attorney, there is very little that can practically be done to force them. However, sometimes enough information can be provided to change their mind. The bank needs to be given enough information to trust that the power or attorney is valid and that they will bear no risk in allowing the agent under the power of attorney access to the money. If they are comfortable that there will be no liability, then they may honor the power of attorney.

Without such assurances, there is really only one solution. A court action is required in the form of a guardianship or conservatorship. Conservatorship over money and property could cost in excess of $10,000.00 in legal fees and costs in the first year alone. And, it costs thousands every year after that.

Banks aren’t the problems, though. The problem is that people and planners don’t know about or ignore the traps that are out there. As always, the best solution is adequate preparation and planning before incapacity strikes. Banks will allow a power of attorney to act, but they have to be added onto the account with their forms, before incapacity.


Baby Boomers and Wills

Posted in Estate Planning, Other Articles

Forbes has an article about what baby boomers need to know to make a will.

Everyone knows that having a will is important, but why do so many people fail or avoid creating one? According to the article:

A national telephone survey … showed that many people who had not taken action were intimidated by the legal expense and their own ignorance.

I work hard to overcome both issues in my practice. I don’t charge for my estate planning consultations where I provide a simple explanations of the most frequently asked questions and the most important issues. Whether someone hires me after a consultation is their choice, but they will get a free personalized legal seminar.

And, when it comes to cost, I don’t bill estate planning clients by the hour. You get one simple flat fee. Easy and simple.

More daughters make health decisions

Posted in Estate Planning, Healthcare Power of Attorney, Other Articles

Darrell C. Harriman linking to First Coast News –  brought attention to research that shows that daughters are making health care decisions for their parents nearly 60 percent of the time.

I haven’t done a formal review of what my client’s have chosen, but daughters are more frequently chosen as agents under a health care power of attorney. They are more often the direct caregivers for their parents. So, it comes as no surprise to me that daughters form the majority of decision makers in healthcare for parents.


Protecting Seniors from Investment Fraud

Posted in Financial Exploitation, Other Articles

Here is a cautionary story from the Elder Law Prof Blog about the financial abuse found in annuity sales to seniors.

A few years ago, one of the more perplexing cases handled by Penn State’s Elder Protection Clinic involved the sale of deferred annuities (specifically, an annuity that would not fully mature for 20 years) to a senior, a widow in her early 80s.

The individual was a ripe target for a manipulative sales pitch, having recently been diagnosed with early stages of dementia, even though at the moment of sale she was still living independently in her home.  She was able to talk and communicate; arguably she did not seem impaired.  She was told the product would save on taxes — a pitch alluring to the frugal woman — except for the fact that she really didn’t need to save on taxes.

If one lives long enough or has looming care needs even at an earlier age, an individual’s post-death estate planning goals can conflict with pre-death care needs. In the clinic client’s case, the woman’s  annual income was modest, and her total estate was not large enough to trigger other major taxes.  The assets used to fund the annuity were virtually her entire savings.  Several months later, her daughter learned of the purchase, while exploring care options for her mother. Her mother was facing ineligibility for Medicaid, as the purchase of the deferred annuity would be treated as transfer, while the alternative was a large penalty if she cashed in the annuity “early.”

The article continues by noting help intended to protect the elderly from investment fraud. Ultimately, even more rules will not help those that are unscrupulous enough to sell inappropriate annuities to seniors and other vulnerable people. The best solution is to work with and protect those seniors you know from financial abuse by participating in their lives and being a trusting resource for them to rely on.

Real Estate in Multiple States

Posted in Other Articles, Probate, Trusts

I found an interesting post by Broel Law Group, LLC explaining ancillary probate in Georgia. It is similar to Arizona because many states have adopted a “uniform” set of probate laws.

Ancillary probate is most often necessary where the person who died owned real estate in more than one state. To sell the property, certified court documents are most often needed from each state. Legal counsel should be obtained in each state to advise on the specifics of the transactions. And, court costs are incurred in each state.

When someone owns homes or real estate in multiple states, the best solution is to put the properties into a trust (a revocable living trust or a simple real estate trust just for the properties). While the owner is alive, it is as if they owned the property and they can do whatever they want with it. But, when the person dies, the person they named as successor trustee can then sell the property without the involvement of the court in any state. All that is usually needed is a death certificate and a document signed by the new trustee. A trust saves thousands of dollars at the time of death, and usually only costs hundreds of dollars more than a simple will.

In limited circumstances, and if the state law allows it, a beneficiary deed can avoid the costs of having to open multiple probates. And, it is automatic upon the death without requiring anything more than recording a death certificate.

Forbes- Retirement tips and change

Posted in Estate Planning, Other Articles

Take a look at this Forbes article about the reality of the change in retirement from the old American dream to what retirement really means today.  Also included are 7 tips for preparing for retirement.

The article points out how the idea of retirement was developed during a very unique period of American history. The idea of retirement still persists in our culture. But, America has changed. Retirement is still possible, and more easily achievable for more people. But, the path to retirement has changed.