Arizona Estate Planning Lawyer & Attorney : Stephen Follett Law Firm : Probate Law and Trusts : Gilbert, Phoenix, Arizona

Most standard mortgages include a "due on sale" clause. The clause is a frightening thing because the mortgage company could demand you pay off the balance of the loan upon a "transfer" of the property from your name into the name of the trustee of your living trust (which most often is you). However, the clause does not apply to transfers of your residence into your living trust if you intend to continue living in the home. This is a result of federal law which exempts:

a transfer into an inter vivos trust in which the borrower is and remains a beneficiary and which does not relate to a transfer of rights of occupancy in the property.

In other contexts a transfer of property, a change in ownership, or other "sale" of the property may otherwise trigger the "due on sale" clause.

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Many people assume an estate plan is useful only on your death. However, there are 3 important elements of an estate plan that take effect when you are alive but unable to make decisions for yourself.

1. Naming someone to handle your financial and personal matters.
2. Naming someone to handle your healthcare decisions.
3. Deciding what life-saving measures and artificial life support will be used to prolong your life.

Making these critical decisions and keeping your plan updated will allow your loved ones to make the decisions without the costly and time consuming court process. If you are in a situation where a loved one has not made those plans, it is not too late. As a loved one, you have a right to ask the court to be appointed conservator and/or guardian for your incapacitated loved one. It may suprise some people to learn that a spouse may need to apply to become a guardian or conservator for their incapacitated spouse. While this process can be simple and respectful, it can be a process that is painful when disputed between interest parties to a family. It likely comes as a shock to see who wants Grandmother to die and who wants her to live. Proper planning can act as a barrier to these ugly disputes. These three elements are properly addressed in powers of attorney (POA), healthcare powers of attorney, living will, and DNRs (do not resucitate orders). Because these documents are so powerful, it is appropriate to have an attorney ensure that they are drafted and executed correctly.

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Often, we procrastinate and postpone what we should do now. We rationalize and miscalculate, because we have a tendency to avoid the hard question or we give too much weight to one factor. Take the time to balance the extreme and painful cost to those who you leave behind against the minimal time and relative cost to you now. You should see the stress it causes to grieving families when a loved one dies without a plan. I have never heard anyone say that they are glad that their loved one failed to prepare. Rather, I hear the pain and anguish that comes because they did not prepare. If you feel any sense that you should get it done, then by all means do it today while you can.

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