Tag Archives: probate

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Photo of a house that was cut in half in order to be moved.

Does a Beneficiary Deed Avoid Probate in Arizona?

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In Arizona, the owner of a house can deed that house to someone using a Beneficiary Deed. The good thing about it is that it’s revocable and it can avoid probate. The applicable statute is A.R.S. Section 13-405. Sounds pretty slick, right? So the question is … does a Beneficiary Deed avoid probate in Arizona?

There are three main problems that I see with using a Beneficiary Deed:

  1. If you name more than one beneficiary, those beneficiaries may not get along. They are taking title as tenants in common, meaning that they each own an undivided interest in the property. But what if one of the beneficiaries moves into the property and refuses to cooperate in selling it or letting the other beneficiary have use of the property. Also, do you really foresee your kids (or whoever the beneficiaries) living in that property like a big commune, along with their kids and grandkids and spouses and friends. I’ve actually seen that happen and it’s kind of crazy. Usually the only way to force all of the beneficiaries to agree to move out and sell the property is to file a legal action in civil court known as a Partition by Sale. This is sometimes called a “Forced Sale.” The rest of the beneficiaries will almost certainly be successful in forcing a sale.
  2. The other problem I sometimes see if naming only one family members as the beneficiary, and assuming that person will sell the house and divvy up the proceeds among the rest of the family. I’ve seen this happen more than once. The way it often happens is something like this: Mom owns the house. Mom signs a will naming son as Personal Representative (executor). The will states that everything gets divided among three kids. Mom then records a Beneficiary Deed giving the house to the son. Son decides to keep the house and tells his siblings “tough luck.” Son wins because the law is on his side.
  3. Some people get confused and think the Beneficiary Deed is the same as a will. They keep it safe with their important documents but never record it with the County Recorder. If the owner dies before the deed gets recorded, it is no good.

The actual way that a “forced sale” works is that the attorney prepares a Complaint for Partition. The applicable statute talks about getting three commissioners to work together and have the property surveyed. The statute was written with farm land or vacant land in mind. Obviously you can’t survey and divide a house (like the photo above). The statute is a little vague about alternatives, but it allows some wiggle room. I usually ask for a neutral third party (such as a licensed fiduciary) to be appointed. The court will order that the neutral party be appointed as a “commissioner” in order to list the house for sale and divide the proceeds. If someone is living in the house, the “commissioner” can start an eviction proceeding to remove the tenant.

Does this all sound pretty complicated? Yup. So the moral of the story is to use a Beneficiary Deed only if you are absolutely 100% sure that you want the property only going to a single beneficiary, and you name that single beneficiary on the deed. Otherwise, stay away from them. There are too many risks. Besides, there are plenty of better ways of handling an estate plan. Don’t be stingy. Hire a good lawyer (such as us) to help you. The money and time that you save your family in the long run will far outweigh the cost up front.

Have a question about this? Drop me an email at paul@magellanlawfirm.com or give us a shout at 602-443-4888.


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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 Handle Estate Emergencies After a Loved One Passes Away

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How to Handle Estate Emergencies After a Loved One Passes AwayDealing with the death of a loved one is always difficult. But death isn’t always the hardest part for the survivors. Many family members are surprised by the challenges and conflicts that arise after the funeral when the family works to settle the estate. If you find that you cannot resolve a conflict regarding your loved one’s estate, you may need to seek assistance from an experienced probate attorney.

I’ve worked with many families in which bickering siblings made emotionally charged and hasty decisions when they distributed the personal property of a deceased parent. It often ended in chaos. Often, I’ve found that executors or trustees grossly mismanage bank accounts and other assets, and consequently deprive remaining family members of their portions of their parent’s legacy.

Naturally, everyone wants the administration of a deceased person’s property and money to be orderly and methodical. But if it isn’t, and if you feel the situation is on the verge falling apart or has already deteriorated into an estate emergency – through misunderstandings or power struggles or other complicated interpersonal relationships – you have two legal options:

  1. Get a personal representative or executor appointed by the court (if one hasn’t already been appointed), or
  2. Petition for an immediate protective order from the court (if the appointed representative or executor is mismanaging the estate).

The biggest mistake I see families make when they try to resolve arguments about distributing their deceased loved one’s belongings and property is to take the law into their own hands. It’s vitally important that you go through proper legal channels to handle an estate. This avoids later flare-ups and also ensures an orderly distribution of assets and legacies. Take these essential steps:

  1. Secure the estate’s property until an executor or personal representative is appointed. If necessary, enlist the help of a third-party fiduciary to do this by being appointed as a Special Administrator. (The police will not intervene in family-estate issues.)
  2. File for an immediate protective order from the court with the assistance of an experienced probate attorney.
  3. Have a representative or executor appointed to manage the estate.

With a qualified representative or executor is in place an estate can be settled according to the will or trust that a loved one has left in place. Without quick action and the help from a special administrator, you risk a delay in probate proceedings and the disappearance of personal property.

If, after your loved one has died, you find that his or her estate is not being administered fairly or methodically, you may have an emergency on your hands. Be prepared to take immediate action if you suspect foul play or mismanagement of personal property in these instances. Talk to a probate lawyer right away.

Delayed action may leave you with no inheritance and no recourse. Working with an experienced estate attorney will not bring your loved one back, but it will ease your mind knowing that your late loved one’s wishes will be carried out.

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Estate Planning: What Is a Guardianship?

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What Is a GuardianshipAs one generation matures another one needs care. Children are suddenly faced with dealing with their aging parents. This shift of roles, however natural it may seem, can be difficult. Illness, injury or long-term condition can leave a parent or loved one needing a little (or a lot) of extra help.

Legal guardianship may be necessary to allow you to help your loved one(s) make the legal, financial and healthcare decisions that are needed for their well-being.

A legal guardianship comes with a number of responsibilities. First, let’s define a few terms:

Guardianship. The legal right given to a person who will be responsible for assisting a person who is deemed to be fully or partially incapable of providing for him- or herself.

Guardian. The person granted guardianship over an incapacitated person

Ward (called an Incapacitated Person in Arizona). A person who is deemed to be fully or partially incapable of providing for him- or herself.

A guardian makes decisions about how the ward lives. These decisions include:

  • It’s important to make sure your ward is getting regular, healthy meals. Malnutrition is common in the elderly.
  • Doctors’ appointments, administering medication, ensuring the ward gets regular checkups are all an important part of guardianship.
  • If your loved on is not safe living alone, it is the guardian’s responsibility to arrange and pay for housing from the estate funds or government benefits. (The guardian is not personally responsible for paying for this expense out of pocket.)
  • Annual reporting. Filing annual guardian reports with the court is also one of a guardian’s responsibilities.

The guardian should assist the ward in maintaining as much independence and autonomy as possible, and should consider the ward’s value system, religious beliefs, wants and desires when making decisions on the ward’s behalf.

Guardianship has its limitations, and it certainly isn’t a magic wand. As a guardian, you cannot force your ward to take medications or to be more compliant. But you can make a difference in the overall care of a ward. And in especially tough situations a guardian can work with the courts to get a court order to make sure the ward in question gets the care and support needed.

Acting as guardian for an aging parent or loved one is an important role. Loved ones may need your help with the most intimate care as they age, which can be demanding and draining. And fraught with uncertainty regarding your responsibility and your ability to take action.

If you have any questions about legal guardianships, I’d love to help. Leave a comment below or contact our office.

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Wills and Estate Planning: Appointing a Personal Representative

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Wills and Estate Planning Appointing a Personal RepresentativePart of creating a will is naming a personal representative. A personal representative is responsible for managing the estate of another, including the probate assets.

To name a personal representative, you must first have a valid will in place. The will should specifically name who you want to manage your estate. Most people choose a representative they already know and can trust. Acting as a personal representative is a big responsibility. It’s best to choose a personal representative who has enough time as well as the financial stability to fulfill the demands of the role.

It’s also important to choose a personal representative who is good with details and record-keeping. A personal representative is held to the very highest standard and must act in the estate’s best interest. If the representative fails to pay taxes, distributes assets to the wrong person or in the wrong proportions, fails to pay creditors before distributing assets (among other things) he or she can be held personally responsible. And your intended beneficiaries can end up getting less than they should have.

If the person named in the will is unqualified to manage the estate for whatever reason – whether this person is a drug addict, gambler, spendthrift or otherwise unavailable – you can request a hearing in probate court to seek to have the second person listed on the will appointed as representative.

In high-conflict situations where family tension is running high, it’s often best to enlist the services of a licensed fiduciary or a trust company. In Arizona, a professional private fiduciary is licensed by the Arizona Supreme Court and will know how to get the job done. While there is a fee to hire a third party fiduciary, having a licensed fiduciary will often save you money by avoiding drawn-out court battles.

The position of a personal representative can be burdensome. It’s important to select someone who is not only willing, but qualified to fill the position. If you don’t have family or friends qualified, enlist the help of a licensed fiduciary.

We offer a multi‑page list that details all the tasks a personal representative must tend to when manage an estate. Do you have any questions about appointing a personal representative? Please comment and let me know.

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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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Appearing Pro Per: Why You Shouldn’t Represent Yourself (even if you’re a lawyer)

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There is a trend for people to represent themselves more and more in legal matters. This is called appearing “in propria persona” or “pro per.” But unless it is an extremely simple legal matter (such as a speeding ticket or small claims court dispute), you are always going to be better served by having an experienced legal advocate on your side. Here are the top 4 reasons why you shouldn’t represent yourself (even if you’re a lawyer) in probate court.
Reason #1: Even if there is no dispute now, there could be if you do something wrong. If you are the person in charge, such as the personal representative or trustee, then you are held to a very high standard. You have a fiduciary duty to act in the best interest of the estate, to act fairly, and to administer the estate or trust expeditiously. But the applicable probate statutes, plus case law, are complicated even for lawyers who practice exclusively in this area. And if you make a wrong move (such as distributing money to the wrong people), you can be held personally liable. Is it really worth saving a few thousand dollars to risk this much personal liability?
Reason #2: You don’t know the applicable law and rules of procedure. Unless you are an experienced probate and estate planning attorney, you are at a severe disadvantage. You are expected to know all of the applicable probate statutes, plus the probate rules, plus the civil rules (to the extent that they do not conflict with the probate rules). Then there are the softer issues, such as knowing when the hearsay rule or the Dead Man’s Statute apply. (Hint: Even if you can recite these rules by heart, that has very little to do with their application in real life during a real evidentiary hearing.)
Reason #3: You are taken more seriously by the opposing parties (and the court) if you have a lawyer. In grade school, did you ever have an older sibling, or a friend, who could help you stand up to a bully or show you the ropes of how to deal with social situations? I had an older sister who would give me straight-forward advice about how to handle various social situations. Or have you ever gone to a party in which you didn’t know anyone? That is a lot easier with a “buddy” as well. Having a lawyer is somewhat like this. You don’t need to always worry that you might forget something or do something wrong, because your lawyer has your back and is helping you navigate the system.
Reason #4: You can’t see outside your own bottle. We all imagine that we are the stars of our own movies. Yet we don’t know how others perceive us. Are we being taken seriously? Do our legal arguments make sense to other people? Is our line of thinking persuasive? There is a saying among attorneys that “An attorney who chooses to represent himself in court has a fool for a client.” Even lawyers who routinely handle legal matters know better than to handle their own cases. The reason is this: We (as lawyers) would be too emotionally involved in our own situation to be able to make rational decisions. This hurts us when it comes to making sound, logical decisions. It also hinders our ability to see the big picture, possible flaws in our thinking, and possible solutions.
If this applies to lawyers who routinely handle legal matters, then it applies even more to non-lawyers. There is definitely an advantage to hiring an experienced advocate to handle your legal drama for you. It will get done quicker and have a higher likelihood of success.

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