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.