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Estate Planning

Estate Planning Must-Haves With COVID-19

By | Estate Planning, Healthcare documents | No Comments

COVID-19, social distancing, and sheltering-in-place brought new changes to our perspectives and the need to re-evaluate current estate planning documents (or lack thereof).  What many people don’t realize is that there are a couple of must haves for everyone, not just clients, with COVID-19 that everyone should know about and consider implementing now.  With those thoughts in mind, let’s look at these must haves.

  • Immediately review healthcare documents.

Everyone, particularly those age 60 and over or with a chronic underlying condition should immediately review their healthcare-related documents including: living will, DNR, healthcare proxy (a.k.a. healthcare power of attorney), and HIPAA release.  Additionally, everyone should immediately consider these documents for themselves if they do not have them.

Attorneys and advisors understand the need to have current documents reflecting the client’s current wishes, and an agent capable of and willing to act in addition to successors.  Apart from the obvious concerns, there are several critical issues with respect to these documents that may warrant immediate revision of these documents for many clients. These issues are specific to the current circumstances of the Coronavirus pandemic.

  • Consider changes to your document if the agent cannot be present.

Prior to COVID-19, very often an agent would physically be in the hospital or medical provider with the healthcare proxy in hand with the individual appointing them going into the hospital. Now, with social isolation and quarantines, physical presence might be impossible.

Consider adding language to all healthcare related documents where the client executing the healthcare power of attorney or proxy expressly authorizes the agent to direct medical providers by telephone, Skype, Zoom, FaceTime, email and other manner of communication.  COVID-19 is an unprecedented situation that is not contemplated in many of the forms and documents currently in use.  Adding this language should help the agent more effectively act and interact with the medical providers.

  • Review intubation prohibitions in health care documents.

Often, standard documents and forms include an absolute prohibition of intubation.  This can prove fatal if that person contracts COVID-19.  In most cases, clients’ intentions when signing these documents was that if they are in a terminal condition and there is really no hope of survival they do not want to be “hooked up to a bunch of tubes” while being kept artificially alive.  People over age 60 or with an underlying medical condition such as diabetes or COPD who contract the virus it would almost assuredly want to be intubated if it meant they would survive COVID-19.

Consequently, many people age 60 with COPD or diabetes might be very likely to survive COVID-19 if they are intubated. This situation differs from those contemplated in many living wills and other healthcare documents.  People with documents barring intubation in all circumstances should immediately revisit those documents and execute new documents that (1) expressly superseding the old documents, and (2) contain more reasonable intubation language are based upon the current circumstances.

As you can see, these must haves apply to everyone, and can help families and those affected with COVID-19 more effectively make health care decisions and obtain care.   As we’ve mentioned previously, hopefully, this “Brave New World’ is temporary, and we can all get back to our regular lives.  These must haves will allow more effective health care decision making in any event going forward.

 

Phoenix estate planning attorney

Why Should I Execute an Advance Directive?

By | Estate Planning | No Comments

Phoenix estate planning attorney

A well thought out and properly drafted estate plan can go a long way toward protecting you and your assets while you are alive along with providing for the distribution of your estate after you are gone. Furthermore, it can provide you with the peace of mind that comes with knowing your wishes regarding end of life medical treatment will also be honored through the use of advance directives. A Phoenix estate planning attorney at Morris Hall PLLC explains why you should execute an advance directive.

What Is an Advance Directive?

An advance directive is a legal document that allow you to plan and make your own end-of life wishes known in the event that you are unable to communicate those wishes at some later time. State law dictates which type of advance directives are recognized in a particular state; however, there are three types of commonly used advance directives that might be recognized in a particular state, including:

  • Living Will – lets you state your wishes about medical care in the event that you develop a terminal condition or are permanently unconscious and can no longer make your own medical decisions. Your Living Will may control or guide your Agent's decisions regarding your health care treatment.
  • Health care power of attorney – allows you to appoint an Agent to make decisions about your medical care—including decisions about life sustaining treatments—if you can no longer speak for yourself.
  • Do not resuscitate order (DNR) – instructs emergency responders to not use lifesaving treatments or tools to resuscitate you if you are found, outside a medical facility, and you are not breathing.

Reasons to Execute Your Advance Directive

In case you need any additional incentive to incorporate an advance directive into your estate plan, consider the following five reasons you need one:

  • Maintaining control -- In the absence of an advance directive, someone not of your choosing could end up making critical health care decisions for you.
  • Preventing litigation -- Without an advance directive in place, your loved ones could wind up in a costly – and ultimately divisive – court battle over the right to make health care decisions for you.
  • Ensuring that your wishes are honored -- If you have strong beliefs about receiving life sustaining medical care at the end of your life, the only way to ensure that those beliefs will be honored is to have an advance directive in place that legally requires them to be honored.
  • Making things easier on loved ones -- No matter how often you have discussed the matter, your close loved ones may genuinely not remember what your wishes are regarding end of life medical treatment given the stress they are under. Moreover, if you do not wish to receive life sustaining treatment or care, your loved ones may not be capable of following those wishes because they do not want to let you go. In that case, only an advance directive can override their wishes.

Contact a Arizona or New Mexico Estate Planning Attorney

For more information, please join us for an upcoming FREE seminar. If you have additional questions or concerns about executing an advance directive, contact an experienced Phoenix estate planning attorney at Morris Hall PLLC by calling 888-222-1328 to schedule your appointment today.

Where Should I Store My Estate Planning Documents?

By | Estate Planning | No Comments
Multiple rows of filing cabinets in an office or medical establishment, overflowing with files. Narrow depth of field to emphasize the "neverending" feeling

 

You have undoubtedly heard from friends and family members all about the importance of creating an estate plan – putting a Will or Trust in place. You listened and you are finally going to make your estate plan a reality. One thing no one explained though, was what to do with your estate planning documents once they are complete. Like most people, you probably keep other valuables in your safety deposit box, making that an obvious choice. The Arizona and New Mexico estate planning attorneys at Morris Hall explain why your safety deposit box is not the best place for your estate planning documents.

What Documents Are Included in Your Plan?

The estate plan you create should be as unique and individual as you are. Nevertheless, there are some common components, strategies, and documents that are frequently found in an estate plan, including:

  • Last Will and Testament
  • Trust agreement
  • Power of attorney
  • Life insurance policy
  • Advance directive

In many cases, an original copy (meaning one with an original signature in ink) of the document in question is required in order for the document to work as intended. For this reason, your estate planning documents should be kept together in a safe place. Understandably, the first place many people think to store their estate planning documents is in their existing safety deposit box. After all, that’s probably where you keep valuable jewelry, deeds to property, stocks and bonds, and other valuables. At first glance, it makes perfect sense to put your estate planning documents in your safety deposit box as well. On closer inspection, however, your safety deposit box is not the best place for your estate planning documents.

Your Safety Deposit Box

To understand why putting your estate planning documents in your safety deposit box may not be the best choice, you need to understand some probate basics. Shortly after your death, your estate needs to go through the legal process known as “probate.” Probate serves numerous purposes, including:

  • Identifying and securing your assets
  • Authenticating your Will
  • Paying debts of the estate
  • Litigating any claims against the estate
  • Paying estate taxes
  • Distributing assets to beneficiaries and/or heirs

If you executed a Will prior to your death, you appointed someone to be the Executor, known as the Personal Representative in Arizona and New Mexico, of your estate. Your Executor is responsible for overseeing the probate process. To perform that job as intended, your appointed Executor must initiate the probate process with the appropriate court and petition the court to be officially appointed as your Executor. If the court approves the appointment, the court will issue Letters Testamentary which provide proof that the Executor has been appointed by the court and therefore has the authority to act on behalf of the estate.

The problem is that in order to initiate the probate process and secure the appointment as your Executor, an original copy of your Will must be submitted to the court. If your Will is in your safety deposit box, however, the bank won’t allow access to the box without proof that the individual seeking access is the Executor of your estate. This becomes a “chicken and egg” problem. Your chosen Executor cannot secure the necessary Letters Testamentary to act as your Executor without your Will – but he/she cannot access your Will without the Letters Testamentary.

Similar problems can crop up with other estate planning documents as well. For example, an Agent under your Power of Attorney may have the legal authority necessary to access your safety deposit box; however, if the POA document granting your Agent that authority is in the safety box, your Agent has no way to prove that he/she is your Agent.

Where Should I Put My Estate Planning Documents?

Now that you understand why your safety deposit box may not be the best place to keep your estate planning documents, the question becomes “where should I keep them?” First, it is always a good idea to let your Agent(s) and Executor know where you keep your important papers. Your estate planning attorney should keep a digital copy as a back-up. Second, your original set of documents should be kept at home in a fireproof safe (with the combination or key accessible by your trusted fiduciary) or given to a trusted family member.  Finally, where possible, copies of the documents, such as the Advanced Medical Directives and Power of Attorney, can be submitted and put on file with your doctor, hospital, and financial institutions (though, it becomes even more imperative to inform those with copies if there are changes to your documents).

Contact a Arizona or New Mexico Estate Planning Attorney

For more information, please join us for an upcoming FREE webinar. If you have additional questions or concerns about what to do with your estate planning documents once they are prepared, contact an experienced Arizona or New Mexico estate planning attorney at Morris Hall PLLC by calling 888-222-1328 to schedule your appointment today.

Albuquerque estate planning lawyer

3 Reasons You Don't Want to Die Intestate

By | Estate Planning | No Comments

Albuquerque estate planning lawyer

If you have yet to create an estate plan, you have surely had to listen to well-meaning friends and family members urge you to get started on a plan.  They may not, however, have explained to you some of the reasons why having an estate plan in place is so vital to you and your loved ones.  To remedy that, an estate planning attorney at Morris Hall PLLC explains three reasons why you don’t want to die intestate.

What Does It Mean to Die “Intestate?”

First and foremost, you need to understand some of the legal jargon related to estate planning. When someone leaves behind a valid Last Will and Testament (or a revocable living trust that directs distribution of decedent’s estate), the individual is said to have died “testate.” On the other hand, if a decedent failed to leave behind a Will, the individual is known to have died “intestate.”

Why Should I Avoid Dying Intestate?

To help provide the impetus you need to get started on your estate plan, consider the following three reasons why you don’t want to die without a plan in place:

  1. You allow the State to decide what happens to your assets. Whether you have already amassed a valuable estate, or you are just starting to acquire assets, the odds are very good that you care what happens to the assets you own. You may, for example, have family heirlooms that have been in the family for generations that you intend to pass on to someone specific. Or may you have a collection that you promised to a favorite niece or nephew. If you are a philanthropist, you may also hope to leave some of your assets to a charity that is close to your heart; or you might have strong religious beliefs and want a church or other religious organization to inherit the assets you own when you die. Regardless of how you wish to distribute your estate assets, you give up the ability to make those decisions if you leave behind an intestate estate. The state intestate succession laws determine how the estate assets are distributed. Those laws typically dictate that assets be passed down to close family members and only in the proportions established by the laws.
  2. It will take longer to administer your estate. One of the many advantages to creating an estate plan, especially a revocable living trust, is the ability to incorporate probate avoidance tools and strategies into that plan. Probate is the legal process that is generally required following the death of an individual. Probate will be costly and time consuming which is why many people actively try to avoid it. When an individual dies intestate, however, it means that no effort was made to avoid probate. Assets that could have been distributed immediately to the intended beneficiaries end up being held up in probate for months, even years sometimes.
  3. The possibility of disputes increases. Finally, leaving behind an intestate estate will increase the likelihood of disputes that could turn into prolonged litigation. When a decedent fails to leave behind even a basic Will, it is impossible to know how he intended to distribute estate assets. It also makes it impossible to know who he intended to oversee the administration of the estate. Heirs often fight over the assets and how the assets will be used. If estate assets need to be sold to pay creditors, or divided according to the intestate succession laws, heirs often disagree over which assets should be sold and how the assets are divided. Not only can these disputes be financially costly, but they can also cause a rift in the family that may never heal.

Contact a Morris Hall Estate Planning Attorney

To get started on your estate plan or if you have additional questions about estate planning, contact one of our experienced estate planning attorneys at Morris Hall, PLLC by calling 888-222-1328 to schedule your appointment today. For more information, please join us for an upcoming FREE webinar.

Phoenix estate planning attorney

Estate Planning Tips for Parents with Minor Children

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Phoenix estate planning attorney

Any parent knows that being a parent is both the most rewarding, and most terrifying, role you will likely ever undertake. The moment you became a parent your priorities undoubtedly changed. The desire to protect and provide for your children guides all your decisions, including those you make within your estate plan. To help you make the right decisions, the estate planning attornies at Morris Hall PLLC offers estate planning tips for parents with minor children.

Is a Last Will and Testament Enough?

Your Last Will and Testament probably serves as the foundation of your estate plan. While your Will can accomplish the distribution of your entire estate, you will find that it is no longer enough once you become a parent. The reason for this is that your minor children cannot inherit directly from your estate. Therefore, assets gifted to a minor in a Will must be managed by an adult until the child reaches the age of majority, which is typical 18. The problem, however, is that you lose the ability to decide who that adult is if you rely on your Will to pass down assets to your minor children. This is the primary reason why parents of minor children choose to establish a trust in addition to their Will.

While you may decide that a Will is not the ideal tool for guarding the inheritance you plan to leave for your children, your Will remains a crucial estate planning tool for parents with young children. The only opportunity you will have to officially nominate a Guardian for your children is in your Will. A Guardian is the person you would want to take care of your children in the event something happened to you, and a court was forced to appoint someone. For this reason alone, your Will remains an important component of your estate plan.

What Is a Trust and Why Do I Need One?

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 Maker, who transfers property to a Trustee. The Trustee, who is appointed by the Trustor, holds that property for the trust's beneficiaries. All trusts fit into one of two categories – testamentary or living (inter vivos) trusts. Testamentary trusts are typically activated by a provision in the Trustor’s Last Will and Testament and, therefore, do not become active during the lifetime of the Trustor. Conversely, a living trust, activates during the Trustor’s lifetime.

A trust offers a number of important benefits to the parents of young children. To begin with, as the Trustor of the trust you appoint the Trustee, and any successor Trustees, allowing you to decide who will protect and manage the inheritance you leave your children. In addition, a trust lets you stagger the inheritance you leave your children instead of giving them a lump sum. You can also decide when they receive those distributions and how much will be distributed each time. No matter how mature a child may be, handing an 18-year-old a large lump sum inheritance is rarely a wise idea. Instead, you may wish to direct the trust to distribute that inheritance in increasingly valuable disbursements over the course of several years to allow your child an opportunity to learn to handle his/her finances. Finally, unlike a Will, a trust can also help you plan for the possibility of your own incapacity. Whereas the terms of a Will only apply upon the death of the Testator, a trust can cover your incapacity as well if you create the right type of trust. This allows you to make certain that someone of your choosing takes over control of your assets in the event of your incapacity instead of leaving it up to a judge. Moreover, you can use the terms of the trust (which you create) to ensure that your children continue to benefit from the assets held by the trust during your incapacity should that come to pass.

Contact a Local Estate Planning Attorney

For more information, please join us for an upcoming FREE webinar. If you have additional questions or concerns about estate planning for parents of minor children, contact an experienced estate planning attorney at Morris Hall PLLC by calling 888-222-1328 to schedule your appointment today.  Morris Hall has offices throughout Arizona and New Mexico, including Phoenix, Mesa, Albuquerque, and Santa Fe. 

3 Reasons to Create an Estate Plan

By | Estate Planning | No Comments

Phoenix estate planning attorney

Have you been putting off estate planning despite listening to friends and family harp about how important it is to have a plan in place? If so, you are hardly alone. About half of all Americans do not have an estate plan, even though most of them acknowledge the important nature of estate planning. To help you find the motivation to get started on your plan, a Phoenix estate planning attorney at Morris Hall PLLC discusses the top three reasons to create an estate plan.

#1 – Protecting Your Minor Child

People often make the mistake of assuming you need to amass a fortune before estate planning become necessary; however, your most valuable assets cannot be valued in terms of money. That’s because your children are your most valuable assets. For most people, becoming a parent changes just about every aspect of their lives. If you are one of those people, you undoubtedly want to protect and provide for your child, both while you are here and in the event you are not here. Your estate plan is the best way to achieve those goals. For instance, because your minor child cannot inherit directly from your estate, you will probably want to create a trust to guard your child’s inheritance. Your Last Will and Testament also provides the only opportunity you have to officially nominate a Guardian for your minor child in the event one is ever needed.

#2 – Avoiding an Intestate Estate

Another common mistake is to assume that estate planning cannot help you if your assets are less than extremely valuable (in monetary terms). Whether you have already amassed a complex and valuable estate, or you are just starting out in life and only have simple, modestly valued assets, the assets you do own probably mean something to you. If you were to die unexpectedly without an estate plan in place, you would leave behind an intestate estate. That means the state intestate succession laws would determine what happens to those assets. Family heirlooms might be given to someone who would not cherish them as you have. Promises to friends and extended family members would not be honored. You even forfeit the right to decide who handles the administration of your estate if you die intestate.

#3 – Planning for the Possibility of Incapacity

While planning for your eventual death and the distribution of your estate assets is an important part of estate planning, it is certainly not the only important reason to create an estate plan. In fact, planning for the possibility of your own incapacity is equally important. You might be surprised to learn that you stand about a one in five chance of suffering a period of incapacity lasting five months or more before you reach retirement age. The odds of becoming incapacitated will also increase as you age; therefore, incapacity provisions within your estate are crucial.  Without these, you have no control over who will make health care decisions for you or who will manage your assets and finances in the event you do become incapacitated. For most people, the thought of a court making those decisions doesn’t sit well. Moreover, if you fail to plan ahead, your loved ones may be forced to battle it out in court for the right to make decisions for you and/or control your assets if incapacity does strike at some point in the future.

Contact a Phoenix Estate Planning Attorney

For more information, please join us for an upcoming FREE webinar. If you have additional questions or concerns about estate planning for parents of minor children, contact an experienced estate planning attorney at Morris Hall PLLC by calling 888-222-1328 to schedule your appointment today.  Morris Hall has offices throughout Arizona and New Mexico, such as Phoenix, Mesa, Albuquerque, and Santa Fe.

Mesa estate planning attorney

Estate Planning for the Beginner

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Mesa estate planning attorney

Hopefully, you already understand the benefits you gain from having an estate plan in place, even if you have yet to create that plan. Now, however, it’s time to get started creating your plan. To help you feel better prepared, the estate planning attorneys at Morris Hall PLLC offers some estate planning tips for the beginner.

Estate Planning Tips

Before you sit down to create your estate plan, you should do some serious thinking and make several important decisions. Making a list so you know what you need to do and what decisions you need to make when creating your initial estate plan can be helpful.

  • Choosing an attorney. The “Do-It-Yourself” route should not be an option considering how important your estate plan is to you and to your loved ones. You can find a wide range of estate planning “fill-in-the-blanks” forms on the internet; however, the odds are high that the form you find will have significant errors and/or omissions that could ultimately cost your loved ones a significant amount of time and money when it comes to administering your estate through the court process of probate. Instead of risking the success of your plan by going the DIY route, consult with an experienced estate planning attorney about your estate plan.
  • Defining your goals. Your initial estate planning goal may simply be the distribution of your estate assets after you are gone; however, a comprehensive estate plan can help you achieve numerous other goals as well, such as incapacity planning, protecting the inheritance of a minor child, or ensuring you can afford the high cost of long-term care if you need it as a senior by incorporating Medicaid planning tools into your plan.
  • Assessing your assets and liabilities. You undoubtedly have a fairly good idea of what assets you own; however, for the purpose of creating an estate plan you should make a detailed list, including current value, location, and identifying information (account number, registration number, lot number etc.).  Make the same list for your liabilities, people and companies that you owe money too (e.g. credit cards, utilities, phone/cable) that you made for your assets.
  • Contemplating your beneficiaries. For the most part, you beneficiaries will be easy enough to identify; however, there may be a few less obvious beneficiaries on the list. Your pet, for example, or a favorite charity might be included once you give it some thought. You also need to think about substitute or successor beneficiaries in case one of your beneficiaries predeceases you.
  • Choosing your decision makers. Choosing your decision makers, called fiduciaries, is one of the most important decisions you will make when creating your estate plan. This is also where people frequently make costly mistakes. Before appointing a spouse, adult child, or best friend as your Executor, for example, stop and consider if that person is really the best choice for the position. The same hold true for naming a Trustee for a trust you create as part of your plan. A Trustee’s duties and responsibilities are numerous and varied, and ideally require a background in law or finance. You may wish to consider a professional Trustee to ensure that your trust is successful. As with your beneficiaries, you will also need to think about successor fiduciaries in case your first choice cannot or will not serve.
  • Signing documents. A surprising amount of litigation centers on improper signing or execution of estate planning documents. To avoid this, make sure that your documents are executed properly, pursuant to the laws of the state. If you work with an estate planning attorney, your attorney will make sure everything is properly executed and can act as a witness to your state of mind at the time you signed each document in case that ever becomes an issue.
  • Updating your plan. Among the most common mistakes people make when estate planning is failing to review and revise the plan they create. To ensure that your plan covers all your current needs, make sure to review the plan every few years as well as when a life event, such as divorce, calls for a revision.  At Morris Hall, we recommend having your estate plan reviewed every three years.

Contact a Local Estate Planning Attorney

For more information, please join us for an upcoming FREE webinar. If you have additional questions or concerns about estate planning, or you are ready to get started creating your estate plan, contact an experienced estate planning attorney at Morris Hall PLLC by calling 888-222-1328 to schedule your appointment today.  Morris Hall has offices throughout Arizona and New Mexico, including Phoenix, Mesa, Albuquerque, and Santa Fe. 

Five Estate Planning Strategies in COVID-19’s ‘Brave New World’

By | COVID-19, Estate Planning, Living Will, Preparedness | No Comments

Five Estate Planning Strategies in COVID-19’s ‘Brave New World’

 The sudden shock of COVID-19, social distancing, and sheltering-in-place has forced many individuals to review and address situations rarely discussed or considered, and new unthinkable realities.  While many older folks have dealt with such matters, many of us have been very fortunate in that we’ve never had to deal with sudden traumatic illness, sheltering-in-place, and increased isolation from family, friends, and neighbors. 

Many people are reaching out to us to implement estate plans they put off finalizing in the last year.  Some folks are calling to review and update their existing plans and others are calling to create estate plans they should have started years ago, motivated by the COVID-19 crisis. 

What many people don’t know is that attorneys are actively offering innovative solutions for clients to devise and implement a plan to provide peace of mind for clients and their loved ones.

Here are five things you should know to act now:

1. Use your time wisely

With so many people sheltering-in-place, it’s likely you have time to consider some of the critical issues you’ve set aside, such as who would you want to make financial or medical decisions if you fell ill and were unable to make your own? 

2. You can do estate planning from home

While you might be sheltering-in-place and unable to physically meet your attorney, you can still plan. Many attorneys working remotely are happy to consult via email, telephone, or video.  Attorneys can prepare documents and send them for your review via email, mail, or tracked delivery such as FedEx or UPS.

3. There’s more than one way to sign your estate plan documents

There are flexible and creative options to execute your estate plan documents.  Here are some ways attorneys are providing signing services while protecting clients and their team while following local social distancing guidelines:

  • Where appropriate, clients may execute their estate plan at the attorney’s office by wearing gloves and masks in a designated “clean” room;
  • Execute  estate plan at your home while wearing gloves and masks;
  • “Drive-up” signing allows you to sign your estate plan documents while sitting in your car.
  • Estate plans may be emailed to client to print and sign in their own home in the presence of a mobile notary.

4. Notaries for wills and trusts are not always required

Many state statutes may not require notarization to create a valid will or trust, even though it is common practice.  For example, in Arizona, a ‘paper will’ is valid if it is witnessed by two people.  Arizona also allows ‘holographic wills,’ which are unwitnessed wills whose material provisions and signature are in the testator’s handwriting. Although it is always advisable to have estate planning documents notarized, it is important to understand your options in case of an emergency.

5. Online notarization may be an option

Online notarization is a very new concept. Most states do not allow for online notarization.  Arizona now allows for online notarization, as of April 10, 2020.  In response to COVID-19’s sheltering-in-place and social distancing realities, some states may allow for temporary electronic notarization of documents during the pandemic. Check your jurisdiction for rules governing online notarizations.

Hopefully, this “Brave New World’ is temporary, and we can all get back to our regular lives.  Reach out to your attorney about how you can enact estate planning during this time.  At the very least, your plan’s documents can be ready to sign once sheltering-in place restrictions are lifted.

Bill is admitted to practice in Arizona, Massachusetts, and before the United States Tax Court.