Category Archives: Probate Basics

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Should You Transfer Your Cemetery Plot to Your Trust?

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Should you transfer your cemetery plot to your trust? Yes, if you want to make sure that your wishes are carried out. In Arizona, the applicable law defines “cemetery property” that you would transfer to your trust as “a cemetery plot, including interment rights, mausoleum crypts, niches and burial spaces.”

If you have purchased such a cemetery plot or mausoleum niche (such as with a prepaid burial plan), the cemetery will give you a “Certificate of Ownership” for use of the plot. You don’t actually own the plot. There is no deed that gets recorded anywhere. Upon your death, the cemetery will contact the “next of kin” to determine what happens with your body. “Next of kin” generally means your spouse, then your kids (if you have any), or if you aren’t married and have no kids, then your parents or siblings.

But … what if your “next of kin” is someone who is irresponsible or who is estranged from you? Then what?

That would be a good reason to have a revocable living trust and to have the cemetery re-issue the Certificate of Ownership in the name of the trust. The cemetery will charge a small fee (perhaps $200) to re-issue the Certificate of Ownership. To get the ball rolling, I usually have my client sign an Assignment of the lot (or niche). I then fax or email that Assignment to the cemetery, along with the contact information for my client. The cemetery will contact the client to arrange for payment, and will then re-issue the Certificate of Ownership.

Here is the language for a sample Assignment:

Assignment of Personal Property

For value received I, [name of person] of [city and state], assign, transfer, and convey to:

[name of trustee], Trustee of the [name of trust] dated [date of trust], and any amendments thereto

The following described Interment, Entombment, Inurnment or Niche Right of Use:

[Description of the lot or niche, such as Section 6, Block 2, Lot 5, Space 3 Single] situated in [name of cemetery, and County and state of location], according to a map of said plot, Mausoleum or Columbarium filed in the office of the County Recorder of said County, and also in the office of said [name of cemetery], which map is hereby referred to and made a part hereof.

 

Dated:  ___________________                                                                                 [signature]

STATE OF ARIZONA                                              )

COUNTY OF MARICOPA                                      )  ss.

This instrument was acknowledged before me on [date], by [name].

[Seal]

                                                                                   

Notary Public

My commission expires:                                             

Once transferred to the trust, the trustee will be able to ensure that your body is properly disposed of according to your wishes. I suggest making sure that this does not conflict with any Health Care Power of Attorney or other document that gives a person the ability to decide what happens to your remains when you die. Avoid conflicts by having the same person in charge of this decision. (You don’t want your health care power of attorney and trustee fighting over what happens.)


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Your Husband Died and His Children are Asking Questions

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If your husband died and his children are asking questions, what do you do? Your husband’s kids may be asking if they can get your husband’s belongings, such as family photos or furniture. Perhaps you and the step children don’t agree on whether your husband should be buried or cremated.

First, you need to see a probate attorney right away. Find out your rights and responsibilities. Once you know where you stand legally, then you will be better able to deal with the other family members. Treat your husband’s kids with respect. But you also don’t need to be a door mat. Maintaining communication is important. It is usually best to invite them to the funeral or memorial service. It also helps diffuse some of the emotions by allowing your husband’s kids to get mementos, such as family photos. These are easy enough to copy and distribute. (You can either take the photos to an art store than can duplicate them. Or there are places that can scan them and save them digitally.) The same thing applies to military medals; you can purchase duplicates for family members who want them.

As to the bigger issues (like your husband’s house and bank accounts), you need to understand that the devil is in the details. Estate planning and probate can be complicated. To help explain what happens, let’s see what will happen to your husband’s house:

  1. If your husband added you to the house deed as “joint tenants with right of survivorship,” then you get the house now that your husband died. Even if your husband had a will or trust, the designation of a beneficiary on a house or account trumps whatever it says in the will or trust.
  2. If the house was in your husband’s name, and he didn’t have a will or trust, then the house is transferred according to state law. The applicable statute in Arizona is somewhat complicated, but generally you (as the surviving spouse) get 50% of your husband’s “stuff” and his kids get 50%.
  3. If your husband had a will, then the will determines who gets what.
  4. If your husband had a trust, you need to see a probate attorney.  While the trust probably determines who gets what, this is not always black and white. For example, you are probably the sole trustee now that your husband has died. However, there are other issues. What rights do you have to income and principal? Are you supposed to divide the trust into different subtrusts?  Do you have a power of appointment?

It always amazes me how blended family seem to get along fine over the years until one of the parents dies. Then all of a sudden the biological children of the deceased parent becomes scared that they’re not going to be treated fairly. Sometimes this is justified, and sometimes it is not. So often, the surviving spouse excludes the other side of the family from even basic civilities. Suddenly, the surviving kids never find out about the funeral. Their request for copies of photographs and family mementos go unanswered. Sometimes they can’t even get a copy of the will! This friction can lead to arguments and even court battles.

If your husband died, you need the help of a probate and trust attorney who will take charge right away. Give us a call at our Scottsdale office and ask if we can help you.


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How to Remove a Guardian

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How to Remove a GuardianIt’s hard watching loved ones age. Their loss of independence can come as quite a blow for their families, and such challenges can become even more difficult if the guardian trusted with the care of a loved one is not fulfilling the responsibilities of the position.

A guardian is a person appointed by the court to make decisions about a protected person’s well-being (the “ward”).

A few of the responsibilities of a guardian, include ensuring safe and clean living arrangements, seeing to appropriate medical care (including compliance with taking of necessary medications)and determining whether or when family members or other people should be able to visit the ward.

If you suspect or see that something isn’t right with the guardianship, you should find an experienced probate litigation attorney to help you file a petition with the court or to contact Adult Protective Services (APS). Both of these bodies take the fulfillment of a guardian’s responsibilities very seriously.

Sometimes, a guardian might be doing an adequate job, but the court will remove a guardian and appoint a successor if it deems that another person is better able to act in the best interest of the ward.

Let’s look at an example where the need for a new guardian is not due to negligence but to circumstance. Sarah, a 75-year-old widow suffering from advanced dementia, is living in a nursing home. She needs a guardian to help with daily living and healthcare. Her son, who was originally appointed as her guardian, lives an hour away from his mother and has his own a busy work and family life. He’s finding it more and more difficult to remain as his mother’s guardian while also seeing to the care of his own family.

Sarah’s sister Beth, who is of sound mind and health, is a registered nurse who happens to live just 15 minutes away from Sarah’s nursing home. Beth visits Sarah daily and is able to be there quickly in an emergency. She has more time to devote to the care of her sister than does Sarah’s son.

It would be in the best interest of the court that Sarah’s son be removed as her guardian, though he has not abused his position, and to appoint Beth as the new guardian.  Sometimes another party is better able to care for the ward.

If a guardian is doing a poor job (whether intentionally or unintentionally), in most cases the court will simply to remove a guardian and appoint a successor. If the case is a more amicable transfer of responsibilities as in the example of Sarah and her son, the court will help with the legalities to relieve the original guardian of the responsibilities and transfer the legal authority to the new guardian.

If you’re serving as a guardian, focus on maintaining open lines of communication with your ward’s family and lawyer. Keep detailed records of both letters and reports of care and receipts for expenses paid for with the ward’s resources.

If you have questions about the process of removing a guardian, please contact our office. We’d love to help relieve you and your family of the burden of navigating the legal system as you seek care for your loved one.

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How to Remove a Trustee

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How to Remove a TrusteeNot everyone works out. And you have the right, as a beneficiary of a trust, to petition to remove the trustee of the estate if he or she proves to be incompetent, hostile, dishonest or otherwise unable to fulfill the responsibilities of administering the trust.

Here’s a quick definition of a trustee and a summary of the duties of the position.

A trustee can be a person (or a trust company) who has legal title to property, who holds that property for the benefit of another and who has assumed a legal duty (also called a fiduciary duty) to act in the best interests of the beneficiaries of the trust. As you can imagine, things can go awry.

Here’s an all too-frequent scenario from a recent case:

In a case involving a prominent Phoenix family that operated multiple businesses owned by their trust, the father had passed away a number of years earlier. The mother continued running the businesses, gradually turning over control to her adult children. One of the sons took control of the trust after the mother developed dementia.

The son used the money from the trust to enhance properties he would ultimately inherit. He also bought himself a new car and started taking lavish cruises and vacations.

My clients – the siblings of this trustee – turned to me for help. First they obtained evidence of wrongdoing. In this case, they were able to get copies of checks written from the trust directly to the trustee. This gave us enough to petition the court and get the son removed as trustee and replaced with a private fiduciary.

Trusts can be set up to allow for safeguards in case of wrongdoing. That is, they contain trigger points that can lead to the removal of a trustee.

For trusts that don’t specify a mechanism to remove a trustee, the court recognizes other reasons. Here are three:

  1. If the trustee has committed a breach of the fiduciary duties of care over the assets or loyalty to the beneficiaries. Examples include failing to pay taxes, stealing assets, and not following the specifications of the trust.
  2. If the trustee is unfit, unwilling or persistently fails to act in the best interest of the beneficiaries and the trust, the court can remove the trustee.
  3. In come cases, the circumstances surrounding the trust can change significantly or all qualified beneficiaries can request the removal of the trustee. The court can review the case and remove the trustee if it deems this for the best interest of the beneficiaries, as long as this isn’t inconsistent with the original specifications and intent of the trust.

If you are the beneficiary of a trust, it’s important to know what to do if the assets are being mismanaged. Trusts are normally very private affairs. In addition, trusts, being civil matters, are outside the jurisdiction of the police. There’s typically no court supervision and no government regulation to make sure that the trust is being run properly. It’s up to you and your attorney to pay attention to how a trust is being managed.

You need to take immediate action if you believe money is being misused. Proactive action increases your ability to protect your inheritance. Contact an experienced probate attorney at the first indication that a trustee is unethical or irresponsible with trust assets.

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What’s a Probate Emergency?

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What's a Probate EmergencyThings can get out of hand, even under the best circumstances, when caring for a loved one or settling an estate.

Probate court helps families arrange care for loved ones who are aging or incapacitated. After a loved one passes away, probate court helps a family sort through and settle their affairs.

It generally takes many months, sometimes more, to settle a case, depending on where you live and the complexity of your situation. Sometimes, however, families need immediate action from the court.

Here are a few examples of emergency probate situations that could require immediate legal intervention from probate court.
• If an elderly person is on the point of being evicted because bills haven’t been paid. A judge can appoint a temporary conservator to help resolve the situation until a permanent conservator can be appointed.

• If a person is not receiving necessary medical treatment for a life-threatening condition. The court can be petitioned to appoint a temporary conservatory.

• If assets are being stolen from the estate or trust of someone who has passed away, a judge can appoint a special administrator or special trustee.

Although some people feel that the police should be called in to resolve an emergency probate situation, the police have no jurisdiction in civil matters involving a guardianship, conservatorship, trust dispute or a decedent’s estate.

What people can do is provide evidence showing a high likelihood of imminent harm or danger unless the court acts immediately. For example, in a situation involving guardianships or conservatorships, you must present the judge with a physician’s note that clearly states, “An immediate guardianship is necessary.”

It’s essential to provide sufficient evidence to prevent a dismissal of any petition. This is where it’s important to have an attorney working with you. Most people who try to represent themselves to establish an emergency situation don’t know enough about the complexities of probate law to provide the judge or commissioner sufficient supporting information.

Here are a few of the other common mistakes people make in probate emergencies:

• Doing nothing after being told by the police the probate emergency is a civil matter.

• Taking away an elderly parent without letting anyone else know, to prevent the parent being placed into a nursing home you didn’t approve of. This can be considered a criminal action.

• Securing valuables from the decedent’s estate to protect them

A probate emergency situation arises when there is immediate danger, immediate harm to either a person, to property or the trust. You must be able to prove to the court that your situation requires immediate action. A lawyer can help with this to ensure the time response that is critical to helping you receive the assistance you need. You don’t have to navigate the waters of probate alone. We can help.

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Testate and Intestate: The 2 Things You Need to Know About Your Last Will and Testament

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The 2 Things You Need to Know About Your Last Will and TestamentIf you don’t have a plan for your estate after you die, the state where you live has one for you. But you probably won’t like it.

Even if you don’t believe in the afterlife, you need to take control of what will happen after life. Your life. For your family’s sake. Without a valid, comprehensive living will (a legal document that specifies what you want to happen to your assets after you die), your family will be left to pick up the pieces.

You should be aware of two definitions about your last will and testament in order to protect your assets and make things easier for your family. These definitions involve the difference between testate and intestate. The difference is simple, but it can determine whether or not your wishes are carried out.

Definition 1: testate – Having a valid will made before one dies. “She died testate.”

Definition 2: intestate – Not having a valid will made before one dies. “He died intestate.”

Translation: If you have a valid will, you are said to die testate. If you die or become incapacitated without a valid will, you are said to die intestate.

It’s also important to understand what makes a will valid and legally binding. Let’s look at the key components of a living will.

A valid will must provide instructions stating:

  • whom you want to receive something,
  • what you want that person to receive and
  • when he or she will receive it.

A valid will must be in writing and must be signed by the testator (the person making the will) or in the testator’s name by some person in the testator’s conscious presence, and by the testator’s direction.

To define this more simply, your will must be in writing. You must sign it. If you’re not able to sign it (if you become paralyzed or otherwise incapacitated), someone else may sign for you under your direction. Most wills are notarized and include a self-proving affidavit. While this extra step isn’t strictly necessary, it does help expedite the process.

A valid living will is important for every family. It helps make the complex process of settling an estate much simpler.

Now that we’ve given you the basics of a valid will, you should be aware of what not to do with it. Here are three common mistakes people make when it comes to a last will and testament:

  1. Putting the will in a bank safety deposit box. Unless you have specifically given someone the authority to open the safe, you will have to have a probate to determine who has authority to open the deposit box. This can create an unnecessary sticky situation.
  2. Not giving a copy of the will to your children or other involved parties who will be handling the estate after your death. If your will is stuffed between the mattress or hidden in the back of your sock drawer, your family may not be able to locate it. Without a copy of the will, your estate will be subject to probate.
  3. Not being specific about who will be in charge of the estate in blended family situations. This is one of the most common causes of confusion and disagreement.

Take the time to create a valid will and give instructions. This will give you and your family peace of mind both now and later. It may be uncomfortable for you to plan your estate, but it’s far better to do it correctly now than for your family to pay an attorney to try to fix later.

Do you have any questions about testate or intestate? I’d love to help. Please leave a comment below or contact our office.

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Probate Basics: 5 Things You Should Know About Probate

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Managing a loved one’s estate that’s gone into probate can be overwhelming and more than a bit confusing. But it doesn’t have to be. Here are some probate basics that can help you start to understand this process.

With proper estate planning, you can avoid a lot of the drama often associated with legal proceedings.

Most people don’t know how to properly plan their estates or the granting of their final wishes – so remaining family members are left to sort through an often-confusing mess. But if you understand what probate is – and how it benefits you – you can take the first step to avoiding drama and confusion.

5 Things You Should Know About ProbateLG

What is probate law?

Technical definition: Probate is a court-supervised process where a will or a trust is established to be the decedent’s valid will. It concerns validity.

But probate also applies to instances where someone is incapacitated, or when there’s a trust that’s been established (and there is a dispute that needs to be resolved). In general, probate refers to any court proceedings that deal with the deceased or incapacitated person’s affairs. (Probate court does not apply to murder, malpractice or other wrongful death cases.)

Translation: Probate is the first step in the legal process after someone dies, or if a living person is unable to make further decisions about his or her estate. The parties involved in settling the estate will go to probate court where a judge (no jury) will review the case and help straighten things out to settle the affairs of the deceased or incapacitated person.

Probate court accomplishes five basic things:

  1. Proves that the deceased or otherwise incapacitated person’s will is valid (this is usually straightforward)
  2. Appoints a person to be in charge of gathering and inventorying assets, paying debts, and distributing the assets
  3. Pays any outstanding debts and taxes
  4. Resolves various disputes that can arise, such as who gets what personal property or how much the house should be sold for
  5. Distributes the remaining property as the will directs (or under state law if there’s no will).

Benefits of Probate

Probate sometimes gets a bad rap. It’s expensive, it’s scary, it’s overwhelming: These are just a few complaints I hear often. There are regulations in place, however, to protect you. Lawyers can charge only what’s considered a reasonable amount for their service in probate.

Here are a few of the benefits of probate that make it a worthwhile proceeding.

  1. Probate gives you options. You can have a say in making sure things are taken care of correctly, according to directions given in the deceased persons’ will.
  2. Probate gives heirs and beneficiaries a voice. Probate gives you recourse should you need help as a beneficiary and heir to make sure the will is carried out properly.
  3. Probate provides perspective. In probate you get the benefit of having multiple people look at issues from various angles, which makes it more likely that you will find a decision that everyone will agree on.

For the most part, probate is a relatively quick and easy way to work out these details. Most cases get resolved within a few months.

To sum up, probate is a court that you can go to whenever someone either dies or becomes incapacitated. It’s a way of not only resolving issues that come up, but also of preventing issues both for the protection of the person in charge and for the other heirs involved.

Do you have any questions about probate? I’d love to help. Leave a comment below or give our office a call.

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