Tuesday, September 15, 2009

Incapacitated vs. Testamentary Capacity

The Arizona Statutes have a definition for an incapacitated person. The Statute reads as follows:
Any person who is impaired by reason of mental illness, mental deficiency, mental disorder, physical illness or disability, chronic use of drugs, chronic intoxication or other cause, except minority, to the extent that he lacks sufficient understanding or capacity to make or communicate responsible decisions concerning his person. A.R.S. 14-5101
Many people assume that an incapacitated person cannot make a will or trust, but that is not the case in Arizona. Disposing of a person's estate requires only testamentary capacity. There is no statutory definition for testamentary capacity, we have to look to the case law for a definition. The Arizona courts have set forth the standard and have ruled that a testator has sufficient testamentary capacity if he (or she) is merely capable of: (1) understanding that the instrument disposes of his property at death; (2) knowing the general nature and character of his property; and (3) knowing the natural objects of his bounty (i.e. the family members that logically would inherit his property) and understands his or her relationship to them. See In re O’Connor’s Estate, 74 Ariz. 248, 246 P.2d 1063 (1952).

The case of In re the Estate of Green, 40 Ariz. 274, 11 P.2d 947 (1932) held that testamentary capacity could be rebutted by a "
Mental derangement sufficient to invalidate a will must be insanity in one of two forms: (1) [i]nsanity of such broad character as to establish mental incompetency generally; or (2) some specific narrower form of insanity under which the testator is the victim of some hallucination or delusion. Even in the latter class of cases, it is not sufficient merely to establish that a testator was the victim so some hallucination or delusion. The evidence must establish that the will itself was the creature or product of such hallucination or delusion . . ." It is apparent that the advances in medicine and the predominance of Alzheimer's disease may seriously affect this definition at some time in the future.

Friday, August 28, 2009

Why do I need a medical directive?

The ability of those who provide medical care to prolong life has exceeded the desire some people have to live. It is not uncommon for someone to fear going on life support more than dying. We have all heard stories of people who are sustained on a life support system long past any hope of recovery or return to useful or even functional life. However, the medical community's fear of lawsuits and claims by relatives forces them to be conservative in the extreme. In this atmosphere of countervailing interests, the need for people to control their own lives has created the need for documents directing medical providers with regard to life-sustaining treatment.

These documents are generally known as advanced directives or living wills. Although the term "living will" is used commonly, it is a misleading term. The medical directive gives instructions to care givers and medical personnel during a person's life and does not have anything to do with transferring property at death.

Generally, the medical directive contains language directing medical to avoid "heroic measures" to prolong life in the event a condition is incurable and terminal. Every state has formal requirements for a Living Will to be valid and enforceable. It is a very good idea to consult with a competent legal advisor before signing such a document.

Friday, August 21, 2009

But I don't have an estate!

Even a homeless person living on the street dies with an "estate." By definition anything you own at the time of your death is in your estate. You may not have an "estate" with enough value to justify a probate action, but you still have an estate. In Arizona, the threshold amount for consideration of a probate is over $50,000 in assets. Below that amount, the Arizona statutes allow an heir to gather and dispose of the estate by "Affidavit." An Affidavit may also be used to transfer real estate of less than $75,000 in value.

The way the law reads for the personal property is, that the value of all of the personal property (cash, bank accounts, stocks and bonds, cars, jewelry, money owed to the person who died, etc.) in the estate of the person who died (the “deceased”), wherever that property is located, less liens and encumbrances, does not exceed $50,000, and at least 30 days have passed since the death.

For real property, the assessed value of the real property (land and permanent structures on the land) in the deceased’s estate located in Arizona, less liens and encumbrances as of the date of the deceased’s death, does not exceed $75,000, and at least 6 months have passed since the

Unfortunately, in today's real estate market many parcels of real property probably qualify for the Affidavit. The Affidavit may also be used by the surviving spouse to collect up to $5000 in wages owed to the deceased.

A person has "standing" (the ability to legally use the Affidavit) if he or she is entitled to the real property and/or personal property, and have the legal right (“legal standing”) to submit an affidavit claiming the property because:
  • • He or she is named in a will to receive the property and they can prove it; OR
  • • The person who died did not have a will, but the person is related to the decedent as a:
  • 1. Surviving Spouse, or
  • 2. Child , if there is no surviving spouse – or there is, but he or she is not your
  • parent and your parent, the decedent, had separate or community property,
  • or
  • 3. Parent, if there is no surviving spouse or child, or
  • 4. Brother or Sister, if there is no surviving spouse or child or parent.
If there are people with equal or greater right than the person entitled to the property, they must all assigned their entire interests in the estate to the person, which is proven by the copy
of the documents they signed to this effect that must be attached to the affidavit.

In actuality this procedure is quite easy to do, except for one catch; some of the financial institutions refuse to recognize the validity of the Affidavit, even if it is properly executed. We are continually having problems in getting banks and other financial establishments to recognized Affidavits.

Monday, July 27, 2009

What happens to my estate if I die without a will?

Large or small everyone who dies leaves an "estate." Even if the property has no value, anything owned by the decedent during life is considered part of the estate. A person who dies without a will or trust disposing of his or her estate is said to have died "intestate." Most states, Arizona included, have very specific statutory provisions which determine the disposition of the deceased's estate.

Arizona's statutes implement the Uniform Probate Code, first adopted beginning in 1969. Only sixteen states have adopted the entire Uniform Probate Code but many other states have adopted portions of the code. Arizona's statutes essentially write a simple will for everyone who dies intestate. Although the provisions of the Code are uniform, it does not mean they are simple. Some of the provisions, especially those dealing with intestate estates (without a will) are quite complicated.

Under Arizona law, if a person dies intestate his or her property goes to the "heirs" as defined by the statutes. The estate goes first, to a surviving spouse, unless there are children (called issue in the statutes) who are not children of both spouses. In the case of children who are not children of both spouses the division becomes even more complicated and will be the subject of another post. In event there is no spouse, the property goes to a person's children, if there are no children, to the parents, if there are no living parents then to siblings, the statutory scheme finally ends with any cousins. See Arizona Revised Statutes Section 14-2103. Absent the existence of any of the relatives provided for in the statute, then the property goes to the State of Arizona. See Arizona Revised Statutes Section 14-2105.

Tuesday, July 21, 2009

What is probate?

The legal process of probate dates back hundreds of years and historically has involved the proving of a will. Basically, probate involves the legal administration of the estate of a deceased person to resolve any claims against the estate and distribute the deceased person's property to his or her heirs. If a person dies with a will, their estate is described as "testate." If they die without a will, the estate is intestate.

The person who administers the estate in the U.S. has various names depending on the jurisdiction. They may be called the executor (executrix), administrator (administratrix) and more recently personal representative.

Traditionally in the U.S. the probate process was lengthy and could be very expensive. Beginning in about 1969 some of the states adopted the Uniform Probate Code. Under the Code the fee structure for attorneys in those states was revised and the cost of handling a probate case has decreased dramatically. Most cases, where there are high probate costs involve disputes between the heirs or larger estates with property in various states.

Tuesday, July 14, 2009

Avoiding Family Controversies Upon Death

There is no question that issues involving the death of a family member or close friend are unpleasant to think about. However, the controversies that can arise between family members when there is not adequate planning is even more unpleasant. I have known many people who were so fearful about the topic that they would not even discuss their affairs with anyone. But no matter how well meaning a person may be, good intentions do not resolve end of life issues.

One of the most common disputes among surviving family members revolves around a misunderstanding as to a realistic valuation of the deceased's estate. If some family members believe that the estate is far more valuable than is actually the case, there is a almost a guarantee that there will be a conflict. In one case I handled recently, the childen believed the deceased to be very wealthy. The facts were otherwise. The Personal Representative of the estate was required to obtain a $1,000,000 bond, but it turned out that the entire estate was less than $10,000.

How could someone get such an inaccurate impression of the valuation of their relative's estate? This usually occurs because of a lack of information. Commonly, houses in joint tenancy are held with a right of survivorship and pass to the joint tenant outside of the estate. Likewise, bank accounts and insurance policies can be set up with a named beneficiary and they also pass outside the probate estate. When all of the jointly held property is taken into a account, a person may have been relatively wealthy during his or her lifetime, but have almost nothing to pass to a potential heir.

Another simple expediency is to identify to your heirs the location and identification of all of your property that might be passed to them through your estate. Too many people have been conditioned by TV shows like Antiques Roadshow to believe that any old item owned by an estate my have an extraordinary value. Sometimes the personal property of the deceased costs more to haul away than it is worth. If your estate could have physical items of potentially high value, then make sure your heirs know about the property and its value. I hear too many stories of valuable antiques or heirlooms being thrown out due to ignorance on the part of the heirs.

Ultimately, the best way to avoid family conflicts after the death of a family member is a good, current, will, a good trust and proper Powers of Attorney and Living Wills.

Monday, June 29, 2009

10 Warning Signs of Alzheimer's -- Sign No. 10

In the past posts I have reviewed some of the most common symptoms and warning signs of Alzheimer's. This is the last in series of warning signs, but it is important to understand that each individual is different. Each person challenged with dementia in any of its forms will not necessarily have all of the symptoms, nor will they progress in each symptom at the same rate as someone else with the same problems. The warning signs are just that, a warning that something might be wrong. If you or one of your circle of concern have any of the symptoms it is a call to take action. Some of the conditions described previously can put the impaired person in deadly danger, not from Alzheimer's but from the effects of the disease. In the Phoenix area, where I live, if an impaired person wanders outside during the summer, they might not live long enough to get help. There are many other situations, like heat in the summer or cold in the winter, that might occur.

The last of the 10 Warning Signs is one of the most difficult to detect, that is changes in mood and or personality. This issue is much more than being irritated at a change in schedule or routine, it is a complex change in the way the person interacts with others. One of the most difficult changes to deal with from a care giver standpoint is paranoia. The Alzheimer's sufferer may misplace common objects and immediately jump to the conclusion that they have been stolen. Since they are having difficulty managing their finances, they may become fearful that someone, even a loved one, is stealing their money. This obsession can go so far that they will start putting money in odd places for safekeeping and then forget where it was located.

As an attorney, I have been regularly called to interview a prospective client who is certain that her money is being stolen. Unfortunately, this is sometimes true, financial exploitation does occur, but more frequently the money or savings are intact and the person is marginally demented.

The personality changes can cause great embarrassment and discomfort to those associated with the impaired person. They may have outbursts of anger for apparently no reason. They may be found hiding in a corner afraid to move. They may call the police regularly to report intruders.

All of these symptoms are just that, symptoms. Some of them may be confused with the typical age-related issues. But if the change becomes regular and repetitive, there may be a problem.

Particularly in the legal and financial areas, it is best to get your finances in order with proper wills and trusts before the impairment becomes too great.

Tuesday, June 16, 2009

10 Warning Signs of Alzheimer's -- Sign No. 9

We may all get tired of our work obligations, family responsibilities and sometimes, social interactions. People who are challenged by dementia or Alzheimer's may appear to distance themselves from work, family and social situations, but the motivation is vastly different than mere weariness. Alzheimer's interferes in an individual's ability to interact in a comfortable way with others and with normal interests and activities. For example, if a person has spent his or her whole life following a sport, like football or baseball, and starts to lose interest and no longer seems to care about team standings, this might be an indication that something is seriously wrong.

In the early stages of Alzheimer's, family members may become upset over the changes that occur in their loved one, misinterpreting the changes as a rejection.

In one case, it became evident that my friend could not distinguish between his grandchildren and their friends. His actions towards the grandchildren were entirely socially appropriate, but because he could no longer remember exactly who he was dealing with, his actions towards their friends were inappropriate and sometimes, embarrassing because they were treated as if they were family members.

The social issues involved in Alzheimer's are some of the most difficult for family members. Going out to dinner with the sufferer may become a trial. It may become apparent that the person can no longer function at church or in a social context.

Monday, June 8, 2009

10 Warning Signs of Alzheimer's -- Sign No. 8

One of the most tragic changes experienced by those who are challenged by Alzheimer's is a dramatic decrease in their ability to make decisions or to use good judgment. Almost everyone makes a bad choice or decision once and a while, but those who are impaired by Alzheimer's are particularly susceptible to outside influence. Sometimes the person will listen to third parties like salesmen or con artists and yet, at the same time, worry that anything said by a member of the family is suspect. This problem can go so far that the con artists will actually use the person's concern about family members stealing from them to take their money.

I have seen Alzheimer's sufferers fail to pay legitimate bills but at the same time pay every magazine subscription offer that comes to them in the mail. Some of those people I have known were paying to dozens of by-the-mail charities, without knowing where or to whom their money was going.

Another related warning sign is a marked decrease in grooming or personal hygiene, especially from a person who has previously been concerned about appearances. Many times sufferers will wear clothes that do not match at all or even go out in public in their pajamas or night clothes. One woman I knew would occasionally forget to get completely dressed at all and show up in her slip. However, if the person's condition gets to this level of dysfunction, some of the other signs will be dramatically worse.

This decline in judgment is a major reason for directing attention to financial affairs before a person declines to the point that such a consideration requires court intervention. Please consider calling me at Jackson White, if you feel this is a problem with yourself or a loved one.

Wednesday, June 3, 2009

10 Warning Signs of Alzheimer's -- Sign No. 7

Are you finding books in the washer and dirty dishes in the closet? If so, you may need to be concerned about Alzheimer's or some other form of dementia. One of the most bothersome of the many symptoms of the condition is the propensity to misplace everyday objects. This isn't the situation where you put your glasses down on a table and forget where they are, this is more challenging. Important papers or bills may turn up missing and be found stuffed in dirty clothes or under furniture. The problem can even be life threatening when food is left out to spoil.

In one situation, we found months worth of fast food meals rotting in the refrigerator. Not only is there a problem with locating objects, the person who is challenged will often be convinced that someone has stolen the missing item. Showing the Alzheimer's person that the object is not really stolen, but merely misplaced, does not convince them that the item was not stolen and is still missing. These confrontations can become very serious, even violent, some people suffering from Alzheimer's have been known to call the police to report property stolen.

The other side of misplacing items, if storing things that need to be thrown away. It is hard to distinguish this trait from abnormal hording, but if a person has not kept every scrap of paper during his or her life and suddenly begins accumulating piles and piles of junk, there may be a reason to become concerned.

If you have a friend or relative who is showing signs of Alzheimer's it is important the they get medical attention. It is equally important that they take care of any estate matters before the condition progresses to the point they can no longer function.

Wednesday, May 27, 2009

10 Warning Signs of Alzheimer's -- Sign No. 6

Everyone struggles to remember a name or recall a precise word, but those with Alzheimer's have more difficulty than remembering single words or names. One classic early symptom of Alzheimer's is repeating the same story or comment again and again without realizing the repetition. Although this may be common, repetition is not universal. The difficulty experienced by those with Alzheimer's is not a simple as a lapse of memory.

People suffering from dementia, like Alzheimer's may lose the ability to put words together in a logical sequence. They may stop talking in the middle of a sentence or start over again, generally without being aware that there is a problem. This problem may be worse if the person also suffers from hearing loss or other similar disability. In my experience, it appears that the person is not paying attention and just drifts off into a different world.

Those giving care to a person with Alzheimer's must be aware that the lack of attention is not intentional, it is part of the condition.

Another problem for people suffering from Alzheimer's is misusing a word or substituting an inappropriate word. The substituted words are not variations of the missing word, but totally unrelated such as using a description for the word. The problem may also extend to a condition like Aphasia, blocking and not being able to complete either a word or a sentence.

Verbal confusion can also be caused by many other medical problems, and all of the warning signs are intended to be considered together.

If a friend or a loved one begins showing signs of memory or word difficulties, it is good idea to make sure their affairs are in order and that they have provided for medical directives before their mental condition deteriorates to the point that they can no longer function.

Thursday, May 21, 2009

10 Warning Signs of Alzheimer's -- Sign No. 5

Many older people experience changes in their vision as they age. What is more worrisome is when these changes in vision are connected with the onset of Alzheimer's. Typical vision changes include cataracts, reduced sensitivity to light, decreased visual acuity, and shortsightedness. Although these symptoms do not relate to dementia, they should still be addressed by proper eye care and regular check ups.

The visual problems related to Alzheimer's or other forms of dementia are much more complex and can be more disturbing to the sufferer. People can develop difficulty in reading and comprehending what they are reading, judging distances and determining color or contrast.

Judging distances can cause falls and car accidents. This problem can also compound existing loss of balance due to other causes. Color perception may result in inappropriate choices of clothes but may also cause other related problems.

One of the most disturbing symptoms is an inability to discriminate between an image in a mirror and reality. The person may think that the image in the mirror is another person and even carry on a conversation. In extreme cases, with people I have known, all of the mirrors had to be taken down or covered because the person became fearful of the images in the mirrors.

Alzheimer's is a sad condition. But addressing the issues with a positive attitude helps considerably to ameliorate the effects.

Monday, May 18, 2009

10 Warning Signs of Alzheimer's -- Sign No. 4

Almost everyone has been lost at some time or another, either as a child or when in a new or unfamiliar location. People with Alzheimer's may get lost in their own home. Although a person may be temporarily confused, typically, the correct information is sorted out. A person with Alzheimer's can forget where they are and how they got there.

Trouble with time and space is often one of the most alarming conditions to those having responsibility for those with Alzheimer's. In an area like Phoenix, Arizona it can be life threatening to walk outside in the summer and forget where you are. One of my friends became so disoriented on his way home from Church that he ended up in a parking lot in Tucson, almost three hours away from his home. Persistent disorientation as to time or place is a cause for concern.

Another potentially fatal issue is that of medication. It is natural to be unable to remember if you took a certain pill or not, from time to time. However, with Alzheimer's a person may take several pills a day or fail to take any at all.

It is significant that care centers focus on physical security and medications. These are two of the most disturbing attributes of the condition. If someone you know has consistent trouble with time or place, they need help immediately.

Wednesday, May 6, 2009

10 Warning Signs of Alzheimer's -- Sign No. 3

Before becoming concerned about mental or cognitive deterioration, it is important to know that although the condition we call Alzheimer's is commonly referred to as a "disease" there is no conclusive proof that it is a disease or that there will ever be a "cure." The changes in brain structures attributed to Alzheimer's are found in "normally" aging brains. What we call Alzheimer's is part of a general condition known as dementia. To quote the Alzheimer's Association:

Alzheimer’s disease accounts for 50 to 70 percent of dementia cases. Other types of dementia include vascular dementia, mixed dementia, dementia with Lewy bodies and frontotemporal dementia. For more information about other causes of dementia..."

Warning Sign No. 3

Challenges in completing every day activities at home, work or leisure.

It is normal for a person to have difficulty with a new piece of electronic equipment, such as a DVD player or a cell phone. It is also normal to forget to pay a bill now and then or to take out the garbage. But when this difficulty begins to extend to activities a person would normally complete without a problem, there is reason for concern.

In my experience, the most alarming problems occur with maintaining the home heating/cooling systems and with cooking. People who were becoming more and more impaired have turned off the air conditioning in Phoenix, having the inside temperature go to almost 100 degrees. Others have left food cooking on the stove until the pan melted from the heat. In other cases, stoves and microwaves have been burned, fortunately without destroying the rest of the house. Before the impairment becomes a threat to health and safety, it is important to notice significant, but not so severe changes.

If a person begins to forget which channel has their favorite TV show, or even how to work the remote, or if a person can no longer wash their clothes or run the dishwasher, there is a need for medical evaluation. One symptom of decreased ability can be observed when the person is taken to a new location, a restaurant or store, for example. If the person cannot figure out which way to go or what to do, there may be a problem.

The initial stages of dementia or Alzheimer's in particular are especially difficult to detect. Many people will attempt to hide their inability to perform tasks by hiding the evidence. In one case, we found that a lady had put all of the left over food from restaurants, in the refrigerator and forgotten they were there. The fridge was full of have eaten and spoiled food. This issue can be very serious if the person lives alone and does not have regular outside contact with people coming into their home.

At this stage of Alzheimer's the person may still talk and react in a normal fashion. It is important that they receive competent medical help and also financial and legal counseling. Decisions need to be made before the person is completely impaired.

Tuesday, May 5, 2009

10 Warning Signs of Alzheimer's -- Sign No. 2

In deciding whether or not you or some one else is having difficulties that you suspect may involve memory or cognition, it is important to distinguish between the "normal" effects of aging and those associated with Alzheimer's or another form of dementia. It is normal for people to lose some abilities with age. Some of the areas that are most impacted include diminished eyesight, hearing, taste, smell and touch. Some changes in the brain are also evident. However, if the changes in brain function are noticeably dramatic and impinge on the ability of a person to function in a normal daily setting, there may be some reason for concern.

Warning Sign No. 2

A decrease in cognitive ability or function, particularly with planning and numbers.

In my experience, one of the earliest indications of impairment seems to be a decrease in the ability to balance a checkbook or follow a schedule. Even before memory issues become evident, a person who has traditionally managed their financial affairs, periodic bills remain unpaid and others get paid more than necessary. Bank accounts may become overdrawn and checks and payments may remain in a pile rather than being processed. An individual who has been managing their finances throughout their life, may become defensive and secretive about their money. Any inquiries may be viewed as a threat. A good cook may not be able to follow a recipe.

These changes may occur over years or within a period of months. The more rapid the change, the greater the need to address the problem.

Although, it is natural to think of medical providers in these situations. It is also necessary to seek adequate legal advice. Financial planning may become of great importance.

Monday, May 4, 2009

10 Warning Signs of Alzheimer's -- Sign No. 1

The Alzheimer's Association has ten warning signs of cognitive impairment which they say "may be a symptom of Alzheimer's, a fatal brain disease." I am not convinced that "Alzheimer's" is a real disease, but that will be the subject of other posts. Before getting upset with this or any other information you may have heard about the so-called "Alzheimer's Disease" I suggest you read the The Myth of Alzheimer's: what you aren't being told about today's most dreaded disease.

Notwithstanding the status of Alzheimer's as a disease or not, memory impairment is a serious problem with the growing population of elderly people in America. As an attorney I have had a fairly large share of elderly clients and all of the ten warning signs are conditions that I have personally experienced either with clients or with others in my circle of acquaintances and friends.

Warning Sign Number 1:

1. Changes in memory ability that becomes disruptive of normal daily life.

Although this is symptom is assumed to be the classic precursor of Alzheimer's or dementia in general, in practical real life situations, the changes in memory can be so subtle that the person can compensate without drawing attention to the fact that their memory is impaired. On the other hand, a sudden decrease in memory ability may be attributed to something entirely separate and distinct from Alzheimer's or dementia. Any sudden change in memory should be addressed immediately by a physician. For example, vascular dementia is caused by a decrease in the blood supply to the brain and not by any of the aging processes attributed to Alzheimer's. Generally, although each individual is different, someone with a memory impairment will not suddenly remember the lost memory at a later time.

It is a good idea if there is a noticeable memory impairment, not just forgetting someones name or a meeting, but consistent inability to remember information, it would be a good time to review the individuals physical condition and check for other symptoms of impairment.

Next time: Warning Sign No. 2

Friday, May 1, 2009

What happens to minor children if the parents die without a will?

In 1940 Arizona enacted the Uniform Simultaneous Death Act. The Act was amended and re-written effective January 1, 1995. Many other states have enacted similar legislation. The intent of this act was to provide for the distribution of the estate of both spouses in the event they died at the same time. Arizona statutes further define a simultaneous death as one where the surviving party died before 120 hours from the death of the first party.

If neither spouse survives, their joint estate passes to their descendants by representation. The term "by representation" means that each of the children who survive their parents inherit a percentage of the estate. In the unlikely event that a child dies, leaving descendants, then the child's children (grandchildren of the decedents) inherit the child's share. Unfortunately, the statutes do not get simpler, but more complicated especially with problems like after-born heirs.

Most of this complication and the problems caused can be avoided by having a will.

The real issue, with children under the age of 18, is their care and custody. Once again, a will can solve most of the problems. In the absence of a will, Arizona looks to the Uniform Guardianship and Protective Proceedings Act, enacted in 1982. A guardian for minor children can be named in a will. If there is no will the law provides that the Court shall appoint as guardian a person whose appointment would be in the best interests of the minor. Although the statutes provide for a priority for the Court's consideration, the statute is not mandatory.

Monday, April 27, 2009

Five ways to minimize the time and cost of probate

There are some relatively simple things everyone can do to minimize the the time and expense of probate. Probate is the legal process of transferring property to a person's heirs either with or without a Will. Most of the expense incurred in a probate action and much of the time the action may take are directly related to the planning or lack of planning done before death.

It is important to understand that avoiding probate may or may not avoid tax liability. It is very important to consult not only legal counsel but also competent accounting counsel before making any of the changes outlined in this post.

1. The easiest way to avoid probate is to die without any property. Although this statement may seem somewhat flippant, it is entirely possible to transfer all of your property out of your name either into a trust or through gifts to your children or other heirs. Property held in a trust in not normally part of the probated estate. Likewise, any property gifted to others during your lifetime is also not part of your estate upon your death. Although there are limitations, particularly tax consequences of transfers or gifts, with the proper planning you can avoid probate altogether.

2. Hold property in joint ownership with survivorship rights. Real property can be held as joint tenants with a right of survivorship. Likewise, in a community property state like Arizona, property can be held as community property with a right of survivorship. Property held with a right of survivorship does not pass to the recipient as part of probated estate.

3. Hold bank accounts as payable on death (POD) accounts. Some banks will allow an account to be held by two or more people with a designation that any amount left in the account will be payable upon death. These funds are not considered part of the probate estate.

4. Purchase life insurance with heirs as beneficiaries. Life insurance proceed pass directly to the beneficiary and are not considered part of the probate estate.

5. Preserve the stories and give items of sentimental value to your heirs before your death. Sometimes children and grandchildren have no idea of the significance of a family heirloom. If you have any items of particular sentimental value consider gifting those items to your heirs before you pass away. The gift will be much more meaningful if the recipient knows the story behind the gift.

There are more things to you can do to minimize the time and expense of a probate and they will be covered in future posts.

Wednesday, April 22, 2009

What about family heirlooms?

Michelle loved her grandmother's antique table. It had been in the family forever and she associated it with the wonderful family gatherings during the holidays. Since Michelle had moved to her house in Sun City, she made the table the centerpiece of her remodeled dining area. Unfortunately, Michelle's two sons lived in small apartments. They both moved frequently with their work and had yet to settle down and purchase homes. Her daughter, on the the other hand, had married well and lived in a lovely house in Iowa. If Michelle died, what would happen to the table?

Items of personal property, like antiques or collectibles, usually are lumped together in an estate. If there is not enough money in estate to pay the bills, the personal property may be sold to pay the estate debts. If Michelle died without a will, likely her estate would be split equally between the three children. If the children could not agree on a distribution of the estate assets, all of the assets might end up being sold, even the antique table, to create cash for a distribution to the heirs.

If Michelle is concerned about preserving specific items in her family, she will need a Will and should give a specific bequest (gift) to the person designated to receive the property, in this case, give the table to her daughter. Some states, like Arizona, allow a person to make a list of personal property and attach it to a Will, designating the people who are to receive specific items.

Wills save a lot of grief.

Monday, April 20, 2009

According to the U.S. Census Bureau:

• In 2001, 72.5 million children under 18 lived in households.
The majority of these children (51.1 million) lived with two parents. Three percent (2.1 million) of all children lived with two parents who were not married to each other.
• Among the 18.5 million children living with only one unmarried
parent, 2.2 million lived with their father.
• Of the 1.4 million children living in households with at least one adoptive parent, 44 percent lived with two adoptive parents.
• Fifteen percent of children (10.6 million) lived in blended families. About half of these children, 5.1 million, lived with at least one stepparent.
• 15.1 million children lived in households with no brothers or sisters present (21 percent).
• 6.2 million children lived with at least one grandparent, and 1.4 million of these children had no parent present.

In each and every case, the welfare and well being of these children, especially those not living with both parents, depends to a large extent on the health and ability of the custodial person. Too many times, in the event of the death or disability of the custodial person, the child's future is left up to chance and the government.

In all of these situations, the people caring for the child could better provide for that child's security through a Will or Trust. Even a simple Will would give the child a chance for some inheritance, especially in those situations where the child is being raised by a relative, such as a grandparent. If the grandparent dies without a Will, the child does not automatically inherit anything. All of the grandparents' estate may go to the absent parent of the child, who did not provide for the child in the first instance.

Monday, April 6, 2009

More Language of Probate

When you are faced with the death of a loved one, it is extremely helpful to know the language of probate. You may need to talk to lawyers, or at a minimum with mortuary representatives, many of the issues that may arise involve decisions about documents and events that have technical names. Even if a probate is not necessary, it may still be helpful to speak the language.

In the past post, I listed a few of the basic terms. Here are some additional terms that help to clarify the probate process:

The assets of deceased person at the time of his or her death. Usually, if a probate is filed with the court, the Personal Representative must file an inventory listing the assets of the estate. This is one reason why some people wish to avoid the probate process entirely. See Appraisal

The document containing the inventory of the estate also contains a valuation of the property listed. This "Inventory and Appraisal" document is provide to each of the heirs as well as the court.

A report of the income and expenditures of the transactions occurring during the time the probate is open. Some situations do not require an accounting unless there is a formal probate.

Informal Probate
Under some state's laws a less involved way of probating the estate where formal hearings before the Court are not required.

Formal Probate
Where there is a dispute or potential dispute about a Will or when the Will is missing or never done, the Court requires a more extensive proceeding called a formal probate. Appointment of the personal representative can only be accomplished after a hearing for which all of the heirs have been given notice.

Holographic Will
A will written out in the handwriting of the person making the will. Each state has its own requirements as to whether or not such a handwritten will is valid.

The person who makes a will.

We will visit this topic again in the future. If you need more information please go to the Jackson White Website.

Thursday, March 26, 2009

The Language of Probate

Attorneys are often stereotyped as using a lot of legal jargon. For the most part this is true, but the law does require specific forms of language. In the area of probate law, the use of legal terms is especially prevalent. In order to clear up some of the difficult language, here are a few common terms used in probate and their definition in plain English:

A will is a formal document expressing a person's desires for the distribution of his or her property upon death. Every state in the U.S. has statutes defining what is and what is not a legal will.

When a person dies having a valid will, they are said to die testate. A person making a will is often called a testator or testatrix (female).

If a person does not have a valid will upon death, they are said to have died intestate.

Personal Representative
Formerly called the Executor of a will, most jurisdictions now call this person a personal representative of the estate.

All of the property, both real property and personal property, owned by a person.

A person who receives property under a will, an insurance policy, a trust or other type of distribution from an estate.

A gift given in a will of personal property.

We will visit this topic again in the future. If you need more information please go to the Jackson White Website.

Wednesday, March 18, 2009

Special needs need a special needs trust

As a young man, Norwood had been involved in a serious automobile accident. Unfortunately, he wasn't wearing a seat belt and was thrown from the car, suffering severe injuries to his head and neck. He never fully recovered. His mother, who was a widow and a saint, cared for him night and day for twenty-five years, but finally her health failed. Norwood had not received any kind of huge settlement from an insurance company, but his parents were well-off and he was well cared for.

With the failure of his mother's health, he had no one to care for him. He could not communicate hardly at all and spent his days watching TV or sitting in the garden. Unfortunately, he needed to be placed in a care center, where there was 24 hour care. Since he was an only child, there was no one left in his family who could help. His mother's failing health took all of the resources of the family and soon, Norwood was entirely dependent on public assistance through Medicaid.

Unfortunately, when his mother died, she left no will and no trust, Norwood inherited all of her substantial property. There was just one problem, all of the property was in real estate. He had no income, but because of his newly inherited wealth, he now did not qualify for Medicaid support. Norwood almost died before this legal tangle was unraveled.

How could things have been different? Norwood's mother could have created a special needs trust for Norwood. She could have also had a pour-over will, putting any and all property she had at the time of her death into the trust. Life would have been considerably different for Norwood at the time of his mother's death.

You may wish to read more at the Jackson White Website. Although this case study is fictional, the situations are real.

Thursday, March 12, 2009

Can I handwrite my own will?

In classic television drama style, Maude hand wrote her own will. She also decided to change the will from time to time and left various copies of her handwritten wishes around her very messy apartment. When she died, Sylvia, her daughter came from out of state and began going through her piles of papers. By the time Silvia went to the attorneys' office, she had found six copies of the will, none of which were dated.

Life has no guarantees, but one way to avoid a family fight is to have an adequate will. Although most jurisdictions recognize a handwritten (holographic) will, even a will written entirely in the handwriting of the deceased may be suspect and cause a disagreement among family members especially if there are various copies of the will with either no date or different dates.

A holographic or handwritten will is valid in Arizona, if the material provisions are in the handwriting of the testator (person making the will). Sylvia, her attorney and the Court may be able to figure out which of the handwritten wills was the last one, but absent some specific language revoking the prior wills, there may be a problem deciding which of the various changes and provisions were the last will of the deceased.

Friday, March 6, 2009

A tangled affair

Dear EPL Transitions,

When I was eight years old and my sister was six, our mother died. She had been sick for years, and we had been living with my mother's parents. Grandma and Grandpa were like our real parents. They helped us with our school, attended all of our concerts and plays and treated us like their own. My father remarried and moved out of state. My Grandma had arthritis and got progressively worse as the years rolled by. About the time my sister graduated from high school, my Grandmother could no longer walk and was confined to a wheel chair. Grandpa tried to take care of her, but it got too much for him and he finally suffered a heart attack and died. I moved back home to take care of Grandma.

Last month, I heard that my father had died. His wife, our stepmother, had also died last year. His wife had Alzheimer's and had fallen and broken her hip. She never recovered. My father was a stock broker and had a rather large portfolio of stocks and some bonds. I don't know if our father had a will or not, but we got a call from my Dad's sister telling me about the stocks and claiming that there was no will. What should I do? My father died in Arizona and my mother died in California.

I can't leave my Grandmother alone for any length of time. What do you think I should do?

Undecided in Arizona

Dear Undecided,

Probate is the process of administering an estate to distribute the assets to the heirs. You certainly need to get more information and find out if your father left a will. Although I cannot give you legal advice in a column like this, you do need to consult a qualified attorney in Arizona about your father's estate. Although you may have to travel to Arizona, you can still act as Personal Representative while living outside the state.

Tuesday, March 3, 2009

The wages of demetia

Wendy's father had Alzheimer's and Parkinson's Disease. He was a difficult patient and had been forced to move from care center to care center. In one case, he had hit the care giver breaking her arm. In another, he had violently pulled open a door and knocked himself unconscious. Wendy was getting emotionally and financially exhausted. She dreaded calls from the care center, especially when they asked for staffing meetings. She was sure she would have to move her father again and she was running out of resources.

Her father's finances were in shambles. As he got progressively more disabled, he had written checks to pay non-existent bills, given money to every charity that sent him an invoice and forgotten to pay utilities and other necessary expenses. Wendy could not handle the situation and her brother, Sam, who lived in Texas, was no help. He blamed her for the whole situation. He would come and visit their father and then claim that there was nothing wrong with him and that Wendy was making all of this up.

In desperation, Wendy turned to her Aunt, her father's sister. Maureen had never been friendly with Wendy, ever since Wendy's mother had died and her father had remarried. Since her step-mother had died, Wendy had not gotten along well with Maureen, but Maureen was an accountant and said she could help straighten things out.

As her father got progressively worse, Sam became even more of a problem. He lost his job in Texas and announced that he was moving back to live in his father's house. Within days, he had moved in and shortly, told Wendy that his father had a Trust and that he, Sam, was now the trustee. Just after Sam moved into the house, Wendy's father died.

Although this fact situation is not real, the circumstances set forth certainly could be. These same type of problems occur almost every day. If you face these types of problems, you may wish to seek legal advice.

Monday, March 2, 2009

A trial of the wills

Sam lived alone in his small motor home in Apache Junction during the winter months. Each year in April, he would pack up his motor home and drive to his family farm in Idaho. Sam's wife had died years before and they could never have any children, but he loved to visit with his younger nieces and nephews. His brother owned the farm and although both of them were getting older, they enjoyed the family atmosphere of the farming community.

When the weather changed and the leaves had all turned, Sam packed up and left for the warm climate of Arizona. There was quite a little community living there at the RV Resort and Sam had made several friends. Norma and Bill were especially interested in Sam and his well being. They made a special effort to make friends with him. That winter, Sam had a mild heart attack and his health began to fail rapidly. He became despondent and dysfunctional.

Meanwhile, Norma and Bill became Sam's best friends. They took him to the store when he needed to go and helped him clean up around the house. When Sam suffered another heart attack, Norma went with Sam to the hospital and visited him every day. As his condition became worse, Norma and Bill started to tell Sam that he needed to "get his affairs in order." As Sam became more and more despondent, they finally took him to an attorney's office and told the attorney that Sam wanted a Will. Sam was in extreme physical distress but could still communicate. Norma and Bill told Sam that he should leave them his estate, because, after all, they had taken care of him. Sam protested that he ought to leave something to his brother and his brother's children. Norma pointed out that none of them had come to help him and that she an Bill were always there for him. Not feeling well enough to protest, Sam agreed and the lawyer had him sign a will leaving his entire estate to Norma and Bill.

If Sam had felt better and not been so sick, he would have noticed that Norma and Bill were intercepting all of his mail from his family. He may also have noticed that his phone was not working courtesy of Norma and Bill.

Sam's brother and his family were shocked when Sam died. They rushed down to Arizona for the funeral only to find out that everything Sam owned had been taken by Norma and Bill. The couple had filed the probate on Sam's will within the statutory five days of his death.

Unfortunately, this story is repeated all across America. Norma and Bill make a good living taking care of their older neighbors and then convincing the neighbors to make a will or change one to leave everything to Norma and Bill. They generally look for old people in poor health who do not appear to have a family close by.

A Will is not something to do when you are old and vulnerable. You need to take care of your affairs now.

Wednesday, February 25, 2009

Blended family? You need a will

Clem is 90 years old and has been a widower for 20 years. He has six adult children and many grandchildren. On an impulse, he marries one of the other residents of the care center where he has lived for the past ten years who also has children. Within a month of his marriage, he suffers a massive heart attack and dies, unfortunately, without a will. What happens to his extensive estate?

In our society with a divorce rate approaching 50% of all marriages, it is becoming increasingly common for married couples to have "blended" families, children of one spouse who are not the children of the other. It is possible that both spouses have children from previous marriages. In these situations, absent a will, Arizona law is likely similar to that of other states.

Arizona law provides that if all of the children are the children of surviving spouse, then the surviving spouse inherits all of the estate. However, as in the above example, if there are surviving children one or more of whom are not children of the surviving spouse, then one-half of the intestate separate property and no interest in the one-half of the community property that belonged to the decedent.

In short, the newly wed widow could get one-half of the property as her interest in the community and an additional half of the decedent's separate property. Usually, in these situations, the decedents direct descendants are not too happy with this outcome.

All of this can be changed by merely having a will that provides for a proper allocation of the decedent's property.

Tuesday, February 24, 2009

What is mental competency?

The word competency has various common usage meanings but it also has some strict legal meanings as well. In court, the word is used in two completely different ways. In one way, competency refers to the a witnesses characteristics that render the witness legally fit and qualified to give testimony. In another sense, competency refers to the ability of a person to make sound and reasonable decisions and judgment.

In the second of the two legal meanings, a person can only be adjudged incompetent after a hearing in the court. This type of competency hearing may occur in both civil and criminal proceedings. If a person is accused of a crime and found incompetent to cooperate in his or her own defense, the court may rule the person incompetent and commit the person to custodial care, usually in a mental institution until they are found competent enough to stand for trial.

In our aging society, the civil competency hearing is becoming more common. Usually, a person's competency is being questioned by friends or relatives who have observed that the person can no longer care for himself or herself. This court hearing may occur when someone seeks to become the guardian or conservator of the incompetent person. Usually, in that context, the court appoints an attorney to represent the incompetent person and orders a medical evaluation.

Friday, February 20, 2009

What is demetia?

Dementia is a progressive decline in metal function that slowly impairs reasoning ability, memory, judgment and the ability to learn. One of the most common forms of dementia is known as Alzheimer's disease. Alzheimer's accounts for about 65% of all dementias. Some of the various dementias, like Alzheimer's, have unknown causes.

The two other most common forms of dementia are Lewy Body Dementia and Vascular Dementia. Lewy Body dementia differs from Alzheimer's both in the physical manifestations of the disease and in progression. In Lewy Body Dementia, the individual develops abnormal brain cell structures, similar to those in Parkinson's Disease, but occurring throughout the brain. The disease is characterized by complex and detailed visual and auditory hallucinations.

Vascular Dementia is caused by damage to the blood vessels to the brain. It can occur due to strokes, heart attacks, high blood pressure, and diabetes. Smoking also increases the risk of Vascular Dementia.

In all of these diseases, there is a need to help the sufferer make provisions for care and for taking care of his or her estate before the disease progresses to the point where the person becomes unable to make their own decisions.

In future posts, I will discuss the issues that arise as a result of these long term, slow acting diseases.

Tuesday, February 17, 2009

Early warnings of dementia or Alzheimer's

Alzheimer's is a disease that attacks the brain. and is the most common form of dementia. According to the Alzheimer's Association, as many as 5 million Americans are living with Alzheimer’s disease. Alzheimer's causes problems with memory, thinking and behavior severe enough to affect work, lifelong hobbies or social life. The disease gets worse over time, and is fatal. Today it is the sixth-leading cause of death in the United States.

The Alzheimer's Association has 10 warning signs of Alzheimer's disease. They are:

1. Memory loss.
2. Difficulty in performing familiar tasks.
3. Problems with language.
4. Disorientation as to time and place.
5. Poor or decreased judgment.
6. Problems with abstract thinking.
7. Misplaced things.
8. Changes in mood or behavior.
9. Changes in personality.
10. Loss of initiative.

While not all of the these symptoms may be apparent early on in the progress of the disease, the presence of a combination of these factors may indicate that medical treatment is necessary.

One of the most important things to accomplish early on in the progress of the disease is getting your affairs in order. It is inevitable that the afflicted person will lose the ability to make decisions about their business and estate matters. If you have not already done so, you should consult with an attorney about forming an estate plan before the disease becomes too severe to allow the person to make decisions. Please call me with any questions you may have about getting your affairs in order.

Friday, February 13, 2009

Durable Health Care Power of Attorney

A power of attorney is a document in which one person (the principal) names another person (the agent or attorney-in-fact) to legally act. Often, powers of attorney are used to sell property or to transact business when the principal is unavailable i.e. out of the country. Normally, a power of attorney is an at-will document, that means that the principal can revoke the power of attorney at any time, either with or without notice. Additionally, a power of attorney is automatically revoked if the principal becomes incapacitated.

The law recognizes an exception to the revocation upon incapacity, when the power of attorney is designated a durable power of attorney. The durable power of attorney is valid even if the principal becomes incapacitated and therefore can be used, in some instances, improperly. Most states have specific statutes imposing personal liability on anyone who misuses a power of attorney. One narrow use of the durable power of attorney, is a durable power of attorney for health care. In this limited case, the agent is given authority to make health care decisions on the part of an incapacitated person, and nothing else.

If a person is already incapacitated, it is too late to get a durable health care power of attorney. The time to plan for incapacity is when you or your loved one has all their faculties and not wait until it is too late to do anything. It may be too late when your loved one is lying unconscious and medical treatment is delayed while the issue of who has authority to act is decided.

Please call me if you have any questions or if I may assist you with a durable health care power of attorney.

Wednesday, February 11, 2009

Living Wills -- Do I need one?

Living wills are sometimes called advance directives to doctors. They are called living wills because the document is in effect during the person's life. Living wills are a formal document expressing person's desires regarding future medical treatment and intervention at a time when the person can no longer communicate. Because state laws differ significantly, it is always important to seek competent legal advice especially with something as important as future health care.

One dramatically important issue confronting those who undergo health care is not just whether or not life can be extended, but the quality of that life. Several high profile cases have been in the media, where a terminally ill patient, in a vegetative state, is kept alive for years by extraordinary medical intervention, when the person, if given the chance, would prefer to die. In Arizona, anyone who has the capacity, can make a living will. However, in other states, only terminally ill people can do so. In either case, it is the individual not relatives or the doctors who make the care decisions.

The options in a living will extend from requiring that heroic measures and technology be used to keep a person alive, to specific directives to do not resuscitate. A living will allows an individual to make these decisions when their mind is clear and they have considered all the possibilities. The person making the living will can choose any preference from heroic measures to no intervention at all, depending the person's feelings and sensitivities.

If you are at all concerned about your future care, please give me a call and set an appointment to come in and make a living will.

Tuesday, February 10, 2009

Wills are not just for old people

Tragedy occurs, a young family is involved in a serious automobile accident and the parents of three young children are killed. The three children survive but what will happen to them? Arizona, like many other states, if the deceased parents did not have a Will, the Court can appoint anyone, even an unrelated person, if the Court finds that the appointment is in the "best interests of the minor." (See A.R.S. 14-5206). The Court can also appoint a conservator to administer the estate inherited by the minors.

But, if the parents had Wills, they could appoint their own choice for guardian and conservator of the estate. Absent a will, the choice is left to the judge.

This scenario is only one of many that could occur to a young couple if they fail to plan adequately and each have a Will. This situation could become even more difficult if the children were from a prior marriage and the previous spouse sought custody of the children. Things could get really interesting if one of the parents, the non-biological parent, is the one to survive such an accident.

Wills cannot solve all of the problems that occur by reason of untimely death, but failure to properly provide for your family can have serious consequences. You may wish to give me a call and discuss the need for a Will.

Monday, February 9, 2009

What is Probate?

One of the most common promotional schemes for "estate planners" is to tell people that they must avoid probate. A Google search on the term "avoid probate" comes up with 179,000 hits. To understand why this phrase is used so often it is necessary to understand what is a probate and also some history.

In the early 1960s, Norman F. Dacey wrote a book entitled, "How to Avoid Probate." The book was an instant best seller and rose to No. 1 on the New York Times best-selling nonfiction book list where it stayed for 47 weeks. Since that time, numerous so-called estate planners have copied the title of the book to sell their products, to a mostly unsuspecting and unknowledgeable public. The idea of Mr. Dacey's book was that people could put their money in a trust and avoid the abuses and fees associated with the probate practice in the United States. The reason the book was such a success is that most probates, at that time, were handled on a percentage basis. Even if the probate was relatively simple and uninvolved, the heirs could end up paying a sizable percentage of the entire estate just to have a few formal papers signed and filed with the Court.

Those days are mostly, but not entirely, gone. In 1972, Arizona, along with many other states, adopted the Uniform Probate Code. The UPC, as it is sometimes called, simplified the process of transferring property upon death. Since that time the abusive probate practices and the outrageous attorneys' fees have been greatly reduced and partly eliminated.

Probate is nothing more or less than a way to determine a deceased person's heirs and transfer the decedent's property to them. Absent a contest by one or more of the heirs, the process, though somewhat complicated, now takes a reasonable time, about six months or more, and can often cost less than the expense involved in setting up an estate plan. (More about the costs of probate in future posts).

If you have a real reason for avoiding the probate process, I can certainly help you formulate an estate plan, either simple or complex, to assist you. But before spending a lot of money on a complicated estate plan be sure and have your needs evaluated by a professional and not a salesman. Please call with any questions.

Friday, February 6, 2009

Competency vs. Incompetency

We often casually refer to someone as "incompetent" meaning that they are not doing what we expected them to do. However, in a legal context, the word "incompetent" has a specific meaning and definition. Legally speaking, incompetency is the inability to manage one's own affairs because of injury or disability and does not understand his or her legal rights or liabilities. Sometimes, depending on the type of legal proceeding incompetency is defined as an inability to understand the nature and object of the proceedings or to assist in the defense of a claim.

In Arizona, the task of determining competency is left to the courts. Obviously, if a person is incompetent they will need assistance in managing their affairs both financial and physical. The law provides for the appointment of a person to take care of the incompetent's physical well being, called a guardian, and to take care of their financial affairs, called a conservator. The action in court is called a guardianship/conservatorship. A guardianship/conservatorship may proceed either with or without the permission of the incapacitated individual. You may also obtain a guardianship of the person without a conservatorship and conservatorship without a guardianship.

In all cases where a person is in need of a guardianship and/or conservatorship, the court will always appoint an attorney to represent the incapacitated person, and will order a medical and psychological review of the person's mental state before granting the guardianship/conservatorship order.

If you are caring for someone who you feel has challenges and may be incapacitated, you should seek competent legal advice about being appointed the guardian and/or the conservator for that person.

At Jackson White, we can assist you with both guardianships and conservatorships. Please give me a call if you have any questions.

Thursday, February 5, 2009

How Do I Know if I Need a Will?

A will is a formal document, recognized by the state where it is made, that disposes of a person's property upon his or her death. In future posts I will discuss the legal formal requirements for a will, but right now, I will answer the question of how to know if you need a will at all?

If you can answer yes to any of the following five question, you definitely need a will:

1. Do you or your spouse have any children that are not children of the present marriage or partnership? This question applies even if one of the spouses is already deceased. The question also includes the situation where you have children but were not legally married.

2. Do you have any items of sentimental or monetary value that you wish to give to a specific person or organization?

3. Do you own more than one parcel of real estate? This especially applies if the real estate is located in more than one state.

4. Do you wish to give more than a proportionate share of your estate to one of your children or other heirs? This applies also if you do not wish to give someone less than their proportionate share or nothing.

5. Do you have a very large estate worth more than the current Federal Tax Lifetime Exemption amount? In 2009 this amount will be $3,500,000. In 2008 it is presently $2,000,000. If the U.S. Congress does nothing, the exemption will drop to $1,000,000 in 2011. Come back to see more about this subject. A will doesn't solve all of your estate tax issues, but it is a necessary part of an estate plan.

If you answered yes to any of those questions, you most certainly need a will. If you have minor children an wish to designate a guardian in event of your death, you may also need a will.

I would be happy to assist you in preparing a will. Please visit our Website at JacksonWhite.

Wednesday, February 4, 2009

An Old Will is Worse Than No Will

Years ago you may have gone to an attorney and paid for an "estate plan" that contained, among other things, a will and perhaps a trust. If time has passed and you have not updated or reviewed these documents, you and your heirs may be in serious trouble. As time passes, people change - some die, some are born and others have life changing experiences like divorce, remarriage and disability.

An old will or trust may end up doing more harm than good. Especially if the document fails to reflect all of the changes that have occurred in the family. What if the person named as personal representative of the estate or trustee of the will is no longer living? Or what if that person is unable to serve or has moved to a distant state? A will or trust is not a static document. It cannot be left unattended for years without severe consequences. There is nothing that makes a probate attorney cringe more than having the heirs haul out an outdated will.

Under the probate law, outdated or not, the Court must take into account the wishes of the decedent, even if it means leaving money to a former daughter-in-law or even a former spouse. There are few things more calculated to cause disharmony in a family.

If you find yourself without a will or trust or one that is woefully outdated, please call me at Jackson White. I would be glad to review your documents and make appropriate suggestions. I am sure that you will find that the cost of our services is more than reasonable.

Please view our complete Website at JacksonWhiteLaw.com