NM Guardianship Cases - Plan Ahead with a Trust

By | Guardianship | No Comments

New Mexico’s guardianship and conservatorship cases are clouded in secrecy.  Once decisions are made by the court, family members are effectively locked out of receiving information.  And in many instances, this has huge economic effects on the estate.

In November, 2016, the Albuquerque Journal did a five-part investigative series, “Who Guards the Guardians.” (https://www.abqjournal.com/896535/guardians.html and http://kanw.com/who-guards-guardians-podcast).  The series revealed a major flaw in the current system, where the secrecy and seeming lack of accountability depleted a $5 million estate down to $750,000 by the time she passed.  The secrecy is designed to “protect” the ward (the person who is incapacitated), because there are times when it is the family members who are trying to take advantage of the vulnerabilities.  But there needs to be better checks and balances in place.

At Morris Hall, we have always felt that by utilizing a revocable living trust as the cornerstone of your estate plan, you and your family will avoid the issues associated with a guardianship, conservatorship, and probate generally.  More importantly, we feel that having the trust put in place is only step one.  We assist our clients in fully funding the trust – ensuring there are no assets left outside of the trust.  We also strongly encourage regular estate plan reviews.  This not only helps ensure the plan does what you think it does, and what you need it to, but it also creates a documented history of your intent.

There have been reforms to the system attempted in the past, but they seem to stall (see https://www.abqjournal.com/967595/guardianship-reforms-doa-in-nm.html).  The goal, seemingly, is to make one set of comprehensive changes, rather than to add smaller fixes, then revisit over time.

Recently, the Albuquerque Journal published a follow-up (https://www.abqjournal.com/1088373/estate-planning-questioned-in-guardianship-hearing.html) piece indicating our State Legislature is trying to pass legislation that puts into law what we have always felt.  The proposed legislation will make it so a court cannot ignore a valid trust.  If passed, this law will provide additional safeguards for all of you who took the proactive measures and planned your estates.

Having a revocable living trust is important to make a difficult time easier.  And in New Mexico today, it is still your first line of defense from getting you and your estate dragged into the overworked, overburdened court system.  Come see us today to have your estate plan, including a revocable living trust, reviewed or put in place.

Trust Attorneys Explain Top Uses for a Trust

By | Trust Administration | No Comments

If you are in the process of creating an estate plan, or you intend to create your plan in the near future, it is important to be familiar with the various estate planning tools and strategies available to help further your plan goals. A revocable living trust is one of the most commonly used estate planning tools.  To help you decide if a trust would be a beneficial addition to your estate plan, the trust attorneys at Morris Hall PLLC explain the top uses for a trust.

Trust Basics

At its most basic, a trust is a relationship whereby property is held by one party for the benefit of another. A trust is created by a Trustor, also referred to as a Grantor or Settlor, who transfers property to a Trustee.  The Trustee holds and oversees the management of that property for the trust's beneficiaries.

Top 5 Uses for a Trust

Though once used almost exclusively by wealthy families as an efficient way to protect and pass down the family wealth, trusts are now frequently found in the average person’s estate plan. To help you decide if a trust would be a beneficial addition to your estate plan, here are some of the top uses for a trust.

  1. Avoiding probate. Probate is the legal process that is typically required after your death to ensure that all estate assets are identified, valued, and eventually passed down to the intended beneficiaries in accordance with your will or statutory provisions. Probate requires court involvement and can be a frustrating process. Unlike assets passing through a will or through intestate succession, assets held in a trust are considered “non-probate” assets, which means they can be distributed outside of probate.
  2. Incapacity planning. When you think of estate planning, you likely focus on planning for your eventual death; however, a comprehensive estate plan also plans for the possibility of your own incapacity. A revocable living trust is frequently the tool of choice for incapacity planning. When you create the trust, you name yourself as the Trustee, and the person you choose to take over control of your assets in the event of your incapacity as the Successor Trustee. As the Trustee, you continue to manage the trust assets just as you did before they became trust assets. If incapacity strikes at any time, your designated successor Trustee becomes the Trustee, thereby shifting control of the trust assets without the need for additional action or court interference.
  3. Asset protection.  An irrevocable trust is often used as an asset protection tool to protect assets from creditors, divorce, and even spendthrift beneficiaries. Because the trust is irrevocable, it is difficult for creditors to reach the trust assets. A Medicaid trust is a special type of irrevocable trust that is also commonly used to protect estate assets if you need to qualify for Medicaid benefits to help with the high cost of long-term care at some point.

Contact Arizona Trust Attorneys

We have only touched upon some of the top uses for a trust.   If you have additional questions or concerns about trusts, contact the experienced Arizona trust attorneys at Morris Hall PLLC by calling 888-222-1328 to schedule your appointment today.

What Do Elder Law Lawyers Do?

By | Elder Law | No Comments

At some point in your lifetime, there is a very good chance that you will need the assistance and/or advice of an elder law attorney, either for your own legal issues or because you are a caregiver for an elderly individual who has legal concerns.  Because elder law is a relatively new area of the law, you may not recognize when you need to turn to an elder law attorney. To ensure that you receive the legal advice and assistance you need from the right type of attorney, it is essential for you to know what elder law attorneys do so you will recognize when you need one.

The Greying of America

In recent years, the elderly (age 65 and older) population in the U.S. has increased at an unprecedented rate. In less than 40 years, between 2012 and 2050, the population of older Americans is expected to jump from about 43 million to over 83 million – an increase of almost 100 percent. As a result, the older Americans will outnumber their younger counterparts (age 21 and under) for the first time in history. The Baby Boomer generation is largely responsible for this phenomenon which has been referred to as the “Greying of America.”  Not only are there simply more people in the Baby Boomer generation than in any previous generation, but the life expectancy of the average American has also almost doubled in the last 100 years, meaning they will live much longer than previous generations as well. The explosion of the elderly population has had an impact on almost every segment of American society, including the legal field. We now have a significant group of Americans who face unique legal needs, giving rise to a new area of the law known as “elder law.”

Elder Law is Recognized

The increase in the elderly population has led to an increase in the need for services catering to the elderly, including legal services. While older individuals face many of the same legal issues that younger people do, they also have some unique legal needs and concerns. With this in mind, the National Academy of Elder Law Attorneys, or NAELA, was formed in the late 1980s as a way to better serve this growing segment of the population. Five years after the creation of NAELA, the National Elder Law Foundation was formed. The purpose of the non-profit NELF was to help improve the professional skills of attorneys who choose to focus on elder law. Toward that end, NELF then developed a national certification program for attorneys known as the Certified Elder Law Attorney, or CELA, certification program. The first CELA examination was given in 1994 with the American Bar Association endorsing the certification program the following year.

What Kind of Legal Matters Do Elder Law Lawyers Handle?

Attorneys who have chosen to focus their practice on elder law issues are a unique breed among lawyers. Unlike other attorneys who choose to specialize – for example, a criminal law attorney – elder law attorneys do not limit their focus to one specific area of the law (such as criminal law). Instead, an elder law attorney must be well versed in a wide range of areas of the law and how those laws affect the elderly. For instance, an elder law attorney might handle:

  • Denial of disability
  • Eviction
  • Estate planning
  • Health insurance issues
  • Retirement planning
  • Nursing home abuse
  • Medicaid planning
  • Veteran’s benefits

Each of these issues relates to a different area of the law; however, they may all impact the elderly and those who care for them. Think of elder law in broad terms instead of narrow terms. Essentially, any legal issues that impact the elderly, or those who care for the elderly, would fall within the purview of an elder law attorney. An elder law attorney has made the choice to understand how issues that impact the elderly affect them and their loved ones and how to with those issues from a legal perspective.

Contact Arizona Elder Law Attorneys

For more information, please join us for an upcoming FREE seminar. If you have additional questions or concerns about what types of legal matters elder law attorneys handle, or if you think you may need to consult with an elder law attorney, contact the experienced Arizona elder law  attorneys at Morris Hall PLLC by calling 888-222-1328 to schedule your appointment today.

Do Phoenix Probate Lawyers Help Executors?

By | Probate | No Comments

The loss of a family member, or close friend, is never easy to handle. On the contrary, the days and weeks after losing someone close to you are typically filled with grief and other strong emotions. If you recently lost a loved one, and also learned that you were appointed as the Executor of the estate by the decedent, you may be wondering how you can handle the duties and responsibilities of being the Executor while also trying to manage the emotional impact of your loss. Fortunately, help is available. Phoenix probate lawyers can help you fulfill your role as Executor so that you can focus on the emotional aspect of your loss.

What Does the Executor Do?

An Executor, or Personal Representative under Arizona and New Mexico law, is appointed by the Testator, the maker, in a Last Will and Testament. In general, the Executor is responsible for overseeing the probate of the estate. Some of the numerous duties and responsibilities of an Executor include:

  • Managing estate assets – the Executor must try and identify and locate all estate assets and then secure those assets as soon after the decedent’s death as possible. In addition, a date of death value must eventually be ascertained for each asset and an inventory may be required by the probate court. Estate assets must also be divided into two categories – probate and non-probate assets. Non-probate assets bypass probate altogether and may be distributed to the beneficiaries immediately.
  • Notifying and paying creditors – as soon as the probate process is underway, creditors must be notified either personally or via publication in a local newspaper. Creditors then have a specified period of time within which to file a claim against the estate. The Executor must review all claims and approve or deny them. If approved, they must be paid out of available assets.
  • Defending the Will – if someone challenges the validity of the decedent’s Will that was submitted for probate, the Executor must defend the Will throughout the subsequent litigation.
  • Paying taxes – every estate is potentially subject to federal gift and estate taxes. Therefore, a tax return must be prepared and filed and any tax owed must be paid.
  • Distributing assets – at the end of the probate process the Executor must facilitate the transfer of the remaining estate assets to the intended beneficiaries.

How Can Phoenix Probate Lawyers Help?

The job of Executor can require a considerable amount of your time and attention. To ensure that the probate process is handled efficiently and without costly errors, many Executors retain the services of a probate attorney to help them. Some of the numerous ways in which a probate attorney can help an Executor include:

  • Understanding and interpreting the terms and provisions in a Will and/or trust.
  • Ensuring that assets are properly categorized as probate or non-probate assets.
  • Preparing and filing the legal documents needed to initiate the probate process.
  • Reviewing creditor claims to ensure only valid claims are paid.
  • Assisting with the sale of assets if the estate lacks liquidity.
  • Helping you defend the Will in a Will contest.
  • Ensuring that all documents are in place to legally transfer assets to the new owners.
  • Providing legal advice throughout the probate process.
  • Acting as your voice when beneficiaries, heirs, or creditors have questions or concerns.

Contact Phoenix Probate Lawyers

If you have additional questions or concerns about the job of an Executor, or any of the other issues probate lawyer can help you with, contact the experienced Phoenix probate lawyers at Morris Hall PLLC by calling 888-222-1328 to schedule your appointment today.

Estate Planning Attorneys Provide a Check List for Creating Your Plan

By | Estate Planning | No Comments

If you are new to the concept of estate planning, it can be a bit intimidating at first.  After all, your finished estate plan should accomplish a number of extremely important things, including protecting you, your assets, and your loved ones both now and in the future. Given everything your plan can, and should, do for you and your loved ones, you may not know where to start to ensure that your finished plan works as intended. Your estate planning attorney will work with you to provide the legal framework for your finished estate plan; however, there are a number of things you can do prior to meeting with your attorney that will help ensure a successful consultation and a finished plan that accomplishes everything you want it to do. To help you prepare, the estate planning attorneys at Morris Hall PLLC provide a check list for creating your estate plan.

  • Make a list of all assets you currently own. Include current value and any debt or encumbrances. In addition, include helpful information such as where the asset is located, any passwords necessary to locate the asset, and anything else that might be necessary for an Executor to manage the asset during the probate of your estate.
  • Make a similar list for all debts you currently have. Include the current payoff amount, when the debt is scheduled to be paid off, and who owns the debt. As with assets, also include helpful information such as passwords or payment schedules.
  • Write down all the people, organizations, charities, and even pets to whom you wish to make gifts in your estate plan. The specific type and amount of the gift you can decide on with your attorney; however, information such as your relationship to the beneficiary and a current address should be included.
  • Business interests. If you own a business, or have an interest in a business, write down as much about the business as possible. Also, take some time to think about what you want to happen to the business should something happen to you.
  • Every well thought out estate plan has an incapacity planning component. If you were to become incapacitated tomorrow, who would you want to take over control of your assets and have the authority to make health care and personal decisions for you?
  • Long-term care. Do you have LTC insurance? If not, how do you plan on paying for LTC if it is needed in the future? If you cannot afford to pay for LTC out of pocket, you likely need to include Medicaid planning in your estate plan.
  • Throughout your estate plan, there will be opportunities to name fiduciaries, such as the Personal Representative (aka Executor) of your Last Will and Testament or the Trustee of a trust agreement. Do not make the mistake many people make of naming the first person to come to your mind. Stop and think about the duties and responsibilities involved and then name the right person to the role.
  • Advanced directives. Many people have very specific wishes about end of life medical care. If you are one of them, you need to put those wishes in writing in the form of an advanced directive to ensure they are honored. In addition, you can name an Agent to make decisions for you if you cannot make them. Who do you want to be your health care agent?
  • Funeral and burial. If you also have specific wishes about your funeral and burial services, those can also be put down in writing to ensure that they are honored. Take some time to think about what is important to you and discuss it with your estate planning attorney.

By thinking about all of these things ahead of time you will have a much more productive consultation with your estate planning attorney. Ultimately, that will translate into an estate plan that focuses on the things that are important to you and your loved ones.

Contact Estate Planning Attorneys

 If you have additional questions or concerns about creating your estate plan, or if you are ready to get started with your plan, contact an experienced estate planning attorney at Morris Hall PLLC by calling 888-222-1328 to schedule your appointment today.

What We Learned From Hurricanes, Earthquakes, Wildfires, Floods and Tornadoes – BE PREPARED!

By | Uncategorized | No Comments

The recent natural catastrophes, including hurricanes, earthquakes, tornados, wildfires, floods and other disasters, cause great concern for peoples’ welfare.  The immediate issue revolves around saving lives, health and security.  It will take months and years, if even that, to recover from some of these tragedies.

One of the serious consequences of these occurrences is often felt almost as immediately, and that is the loss of important legal documents. People create legal documents for estate planning, for the protection and disposition of their precious possessions, and for the care of their persons when they are no longer able.  Timely access to these documents is essential.

Another issue arises as to the protection of items of great sentimental or historical value.

Too often in emergency situations, people discover that their legal documents and the documents of others for whom they now have responsibility,  which documents they thought were just fine, are very inadequate  for the unanticipated situations in which they find themselves. 

Now is an appropriate time to have your legal documents reviewed.   It is also important to arrange now for the safekeeping of these documents.  There are protections, which thousands now wish they had, that will assure that your most important documents will not vanish in the earthquake, or flood, or whirlwind.

We invite you to visit with an attorney at Morris Hall, PLLC to be sure your important legal documents are up to date, and are protected in the event of a catastrophe.

Can Probate Lawyers Help My Estate Avoid Probate?

By | Probate | No Comments

When you think about estate planning, you likely focus on creating a plan for the distribution of your estate assets when you are gone.  Although that may remain your primary estate planning goal, you will probably also include additional, related goals as your estate plan grows. A common goal found in many comprehensive estate plans is probate avoidance. In reality, it may be impossible to avoid probate entirely; however, with some careful planning, you can create an estate plan that dramatically reduces the amount of time and money spent on the probate of your estate. That, in turn, may make much needed assets available to loved ones much sooner after your death. The probate lawyers at Morris Law PLLC explain why probate is necessary and offer some common strategies for reducing an estate’s exposure to the probate process.

What Is Probate and Why Is It Necessary?

When a person dies, he or she leaves behind an estate that consists of all the assets the individual owned or had an ownership interest in at the time of death. This includes both real and personal property, including tangible personal property. Probate is the legal process that many of those assets must go through to transfer to the intended beneficiaries or legal heirs of the estate. In addition, probate serves to identify, locate, and value those assets as well as notify creditors of the estate and provide them with the opportunity to file claims against the estate. If a Last Will and Testament was executed by the decedent prior to death, probate also authenticates the Will, or in the alternatives, provides the legal forum for contesting the authenticity of the Will. Finally, probate ensures that any state and/or federal gift and estate taxes owed by the estate are paid.

What Can Probate Lawyers Do to Help My Estate Avoid Probate?

Although it may be impossible to avoid probate entirely, there are several estate planning tools and strategies that can dramatically decrease the amount of time and money spent on the probate of your estate. The time and expense of formal probate are the primary reason why probate avoidance is a common estate planning goal.  Probate is also public. Formal probate can take months, even years, to reach a conclusion. Probate assets remain out of the reach of the intended beneficiaries while probate is open, meaning the beneficiaries cannot benefit from the use of the asset until probate is finished. In addition, there are a number of expenses related to the probate process, and they typically increase the longer probate takes to reach a conclusion. Everyone involved in the probate process is entitled to a fee, including the Executor, estate planning attorney, appraisers, real estate agents, and accountants. The time and money expended during probate create a huge incentive to include probate avoidance as an estate planning goal.

In general, the key to minimizing the time your estate spends in probate is to reduce the number of probate assets in your estate. Not all assets are required to go through the probate process. Non-probate assets bypass probate and can, therefore, be distributed to the intended beneficiaries immediately following your death. Some commonly used non-probate assets include:

  • Qualifying for a small estate alternative – most states, including Arizona, offer an alternative to formal probate for small estates that qualify. Typically, the estate’s value must be below a designated amount and the estate may have to meet additional eligibility criteria, such as no real property or the agreement of all heirs of the estate.
  • Trust assets – assets held in a trust bypass probate. For this reason, people often choose to use a trust agreement as their primary estate planning document for distributing assets after death. Using a trust has the added benefit of confidentiality because while your Will is a matter of public record once admitted to probate, a trust agreement is not.
  • Life insurance proceeds – proceeds from a life insurance policy are not part of the probate process and are therefore, paid out immediately to the beneficiary.
  • Jointly owned property – co-owned property, of held jointly with rights of survivorship, can be an excellent probate avoidance technique. Upon the death of one owner, that owner’s interest in the property is automatically transferred to the survivor(s).
  • Beneficiary Designations – many assets, such as case or investment accounts, allow a “payable on death” or “transferable on death” beneficiary designation.  This allows the interest on the asset to be transferred outside of probate.

Contact Arizona Probate Lawyers

For more information, please join us for an upcoming FREE seminar. If you have additional questions or concerns about probate avoidance, contact the experienced Arizona probate lawyers at Morris Hall PLLC by calling 888-222-1328 to schedule your appointment today.

Phoenix Trust Attorneys Explain Trust Administration

By | Trust Administration | No Comments

A well thought out estate plan will typically include more than just a Last Will and Testament. Although every estate plan is as unique as the individual who created the plan, a common addition found in many plans is a trust agreement. Trusts are frequently used in estate planning because of their flexibility and because of the numerous and varied estate planning goals that can be served using a trust. If you decide to include a trust in your estate plan, one of the most important decisions you will need to make during the creation of your trust is who to appoint as the Trustee of your trust. The Trustee of a trust is responsible for administering the trust as well as managing and investing trust assets. To help ensure that you appoint the right Trustee for your trust, the Phoenix trust attorneys at Morris Hall PLLC explain some trust administration basics.

The Importance of Appointing the Right Trustee

One of the most common mistakes a Settlor (the creator of a trust) can make is to appoint the wrong person as Trustee. This often happens when a Settlor appoints someone close to them, such as a spouse, close friend, or relative as the Trustee based solely on their relationship to the individual instead of on the individual’s ability to perform the job of Trustee well. Ultimately, this can lead to the failure of the trust if the Trustee ends up in over his/her head and doesn’t seek the help and guidance of a professional in time. To avoid making this common mistake, make sure you have a firm understanding of what is expected of a Trustee and then take the time to choose the right person for the job.

What Is Involved in Trust Administration?

Appointing the right Trustee begins with understanding the duties and responsibilities involved in administering a trust, such as:

  • Following trust terms -- the Trustee of a trust is required to abide by the terms of the trust, as created by the Settlor, unless a term is illegal, impossible, or unconscionable. This requires the Trustee to understand the terms and to have the ability to follow a term even if the Trustee doesn’t personally agree with the term.
  • Managing trust assets – this could require something as simple as monitoring and filing bank statements or something as complex and time-consuming as handling the maintenance and upkeep of real property or a business.
  • Investing trust assets – ideally, the assets held in a trust are income producing assets. This, however, requires the Trustee to invest those assets wisely. A Trustee must always use the “prudent investor standard” which dictates conservative investments wherein the trust principal is never at risk.  Moreover, because a Trustee is in a fiduciary role, he/she must be more careful with trust assets than the Trustee would be with his/her own assets.
  • Keeping detailed records – because a Trustee is managing assets intended to benefit a third party, and receives a fee for that management, very detailed records should always be kept.
  • Communicating with beneficiaries – a Trustee is responsible for keeping beneficiaries informed of all trust business in a timely manner.
  • Resolving conflicts – if a conflict arises the Trustee must defend the trust in any litigation. If the conflict is among beneficiaries, a Trustee should act as a mediator to try and resolve the conflict.
  • Paying taxes – a trust is a separate legal entity, meaning taxes must be prepared and paid each year by the Trustee. Even if a Trustee hires a CPA to prepare the trust taxes each year, the Trustee should have sufficient financial skills to understand the tax return and any obligation the trust has for paying gift and estate taxes.
  • Distributing assets – the Trustee is responsible for distributing trust assets to the designated beneficiaries according to the terms of the trust. 
  • Making discretionary decisions – typically, a Trustee has some degree of discretion. Some Settlors give a Trustee only a token amount of discretion in case of an emergency while others provide a Trustee with the discretion to make major trust decisions.

Contact Arizona Probate Lawyers

For more information, please join us for an upcoming FREE seminar. If you have additional questions or concerns about probate avoidance, contact the experienced Arizona probate  lawyers at Morris Hall PLLC by calling 888-222-1328 to schedule your appointment today.