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Probate

Phoenix trust lawyers

Can a Trust Help Keep My Gifts Private?

By | Probate | No Comments

or most people, one of the primary motivations for creating an estate plan is to ensure that their estate assets are distributed according to their wishes after they are gone. Most people also use a Last Will and Testament as the estate planning tool of choice to achieve that goal – at this in their initial estate plan. As your estate and your family grow, however, you may recognize the need to expand your estate plan as well.

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Do Phoenix Probate Lawyers Help Executors?

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Phoenix probate lawyers

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.

Can Probate Lawyers Help My Estate Avoid Probate?

By | Probate | 3 Comments

probate lawyers
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.

Arizona probate process

What You Need to Know about the Arizona Probate Process

By | Probate | No Comments

Arizona probate processMost people find themselves directly involved in the probate of an estate at some point in time during their lifetime. For you, it might be because a loved one appointed you the Executor of their estate or it might be because you are a beneficiary or heir of the estate of a recently deceased loved one. You might manage to avoid any direct involvement in the probate of someone else’s estate, however, at least a basic understanding of the Arizona probate process remains helpful for purposes of planning your own estate.

What Is Probate?

Almost everyone leaves behind an estate when they die. That estate consists of all assets owned by the decedent at the time of death, including both tangible and intangible assets as well as both real and personal property. To ensure that those estate assets are properly, and legally, transferred to the new owners, the law requires them to pass through the legal process known as probate. Along with facilitating the transfer of estate assets to the new owners, the probate process also serves as a way to ensure that all debts of the decedent are paid, including both personal and estate taxes.

Is Probate Always Necessary?

Some type of probate is almost always required, however, formal probate may not be necessary. Like most states, Arizona offers an alternative to formal probate for small estates. Estates that include less than $75,000 of personal property and less than $100,000 of real property may qualify to use a small estate affidavit to transfer assets in lieu of going through the full probate process.

In addition, not all assets are considered probate assets. Non-probate assets bypass the probate process and may be distributed to beneficiaries immediately following the death of the decedent. Examples of non-probate assets include:

  • Proceeds of a life insurance policy
  • Assets held in a trust
  • Funds or property held in an account titled as “payable on death (POD)” or “transfer on death (TOD)”
  • Jointly held property if titled with rights of survivorship
  • Funds held in certain types of retirement accounts

Who Oversees the Probate Process?

If the decedent died testate, meaning he/she left behind a Last Will and Testament, the individual named as the Personal Representative in the Will oversees the probate of the estate. If the decedent died intestate, or without a Will, any competent adult can volunteer to oversee the probate process. If no one volunteers, the court will appoint someone.

What Are Some Common Steps in the Arizona Probate Process?

Common steps involved in the probate of an estate include:

  1. Opening probate. This requires you to submit the original Will along with a petition to open probate to the appropriate probate court.
  2. Identifying, securing, and valuing estate assets. All assets must be secured and a date of value must be ascertained for all assets.
  3. Notifying creditors. Creditors of the estate must be notified that probate is underway and given an opportunity to file a claim. Known creditors may be given actual notice while unknown creditors are notified via publication in a local newspaper. Creditors only have a limited amount of time within which to file a claim. The Personal Representative reviews all claims and pays approved clams out of estate assets.
  4. Litigating any challenges. If someone filed a Will contest, it must be litigated before the probate process can be concluded. The Executor is also duty bound to defend the Will submitted to probate.
  5. Paying taxes. All estates are potentially subject to federal gift and estate taxes. If any are due, they must be paid before the probate process can reach a conclusion.
  6. Transferring assets. All assets remaining in the estate are transferred to the intended beneficiaries pursuant to the provisions of the decedent’s Will or are distributed to legal heirs of the estate pursuant to Arizona’s intestate succession laws.

If you find yourself involved in the probate of an estate and you need guidance and/or advice, consult with an experienced Arizona estate planning attorney.

Contact Us

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

When Is the Right Time To Plan?

By | Estate Planning, Probate, Trustees, Will | No Comments

Before I answer this question, here’s a true story that was recently shared by a colleague.

John died recently at age 40. He was single and no children. John lived with his mother as her caregiver, because she had some physical challenges. John had a heart attack and was on life support at a local hospital for one week. John had no health insurance. The hospital bill was over $100,000.00. John had a 401(k) and some IRAs from his work over $100,000.00.

The hospital wants John’s mother to open an estate so they can recover whatever he had for hospital bills. John had no will, no medical directive, nothing in place. Nobody knows his computer passwords, etc.

If the 401(k)/IRAs had a beneficiary designation, such as his mom or his brothers, the retirement money would have bypassed probate and the claims of the hospital. Unfortunately, John had no beneficiary designated, so all of the accounts are going through probate where the hospital will get it all.

A simple name on the beneficiary designation would have taken care of this.

The answer is - if you are over the age of 18, at a minimum, there is simple estate planning to be done.

wendy-harn-photo  Contributed by Morris Hall PLLC Tucson and Oro Valley Estate Planning Attorney and Partner, Wendy W. Harn.

What the Attorneys of Morris Hall, PLLC Can Do For You:
The attorneys at Morris Hall have 100’s of years of combined experience ensuring that families’ assets are protected from probate, unnecessary taxes, creditors, ex-spouses and Medicaid spend-down.  Our Arizona offices are located in Phoenix, Mesa, Scottsdale, Carefree, Tucson, Oro Valley, Prescott, Flagstaff and Arrowhead.  Our New Mexico offices are located in Albuquerque, Las Cruces and Santa Fe.  Contact us today at 888.222.1328 to schedule an appointment!

This blog should be used for informational purposes only.  It does not create an attorney-client relationship with any reader and should not be construed as legal advice.  If you need legal advice, please contact an attorney in your community who can assess the specifics of your situation.

 

Why You Want to Avoid Probate

By | Death Probate, Estate Planning, Living Probate, Other, Probate | No Comments

Have you or a loved one ever gone through a probate? Here are five reasons why you would want to avoid Probate.

  1. Lose your privacy. Probate proceedings are available to the public and will be published in a local newspaper. Anyone can gain access to your personal information through the courthouse.

  1. Time Consuming. Probate proceedings have the potential to be very long in duration. On average, a probate can last from 9 months to 2 years.

  1. Assets are Frozen. During the Probate process your assets are frozen until the process is over. If the market is good to sell real property, the probate process has to be over before the property can be sold.

  1. Probate can be costly. Besides your estate paying taxes and creditors, there are many fees associated with probate. These fees include attorney fees, personal representative fees, appraisal fees, and court fees. Probate fees vary from state to state, but on average it can range from 3-6% of the value of your estate.

  1. Probate could happen more than once. If you have property in more than one state, your estate will have to go through probate in each state. This means you will have probate fees in each state as well.

Wendy-Harn-PhotoContributed by Morris Hall, PLLC Tucson and Oro Valley Estate Planning Attorney and Partner, Wendy W. Harn.

Why Choose Morris Hall, PLLC:
You have a number of options when it comes to estate planning, so why pick Morris Hall?  First off, estate planning and asset protection are a very complicated endeavor and you should only trust someone who focuses exclusively on those matters.  Also, Morris Hall is a proud member of The American Academy of Estate Planning Attorneys (AAEPA) which provides us additional support, advanced training, tools and information that is not available to others – which means that we can better protect your assets and your loved ones.  We are one of only three firms in Arizona that belong to the AAEPA and are the only firm in New Mexico that has been granted membership.  If you have assets and loved ones that you want to protect, you are in good hands with Morris Hall.  Contact us today at 888.222.1328 to schedule an appointment!

This blog should be used for informational purposes only.  It does not create an attorney-client relationship with any reader and should not be construed as legal advice.  If you need legal advice, please contact an attorney in your community who can assess the specifics of your situation.

Help Your Parents

By | Estate Planning, Planning Ahead: One Week at a Time, Probate | No Comments

Did you know that without proper planning, you are sending your loved ones to court?  That is so strange to me.  We try to avoid going to court during our daily lives, but 70% of Americans are effectively saying, “I love you so much, off to court with you!”

I hear all of the time, “I will be dead, I don’t care how long it takes.  I don’t care how much it costs.”  And that is true, so I am starting a new campaign:

Help your parents plan their estate

By having your parents meet with an estate planning attorney, and to implement a proper estate plan (there are many unintended consequences for not having a proper estate plan), you are helping yourself (as well as your parents).  So if for no other reason, having your parents meet with one of our attorneys will save you a lot of headaches later on.

You will have a clear document that guides you through the administration process (the steps to be followed after a person dies with a proper estate plan).  There will be no court delays.  There will be no court cost.  There will be no court.  A proper estate plan, which utilizes a revocable trust as its foundation, avoids the court process of probate.

And that is the tip of the iceberg.  A proper plan can provide so much more for your parents, and ultimately for you.

Help your parents plan their estate their estate today.  Have them give us a call, and make an appointment to meet with one of our estate planning attorneys.  We will help them, and in turn, it will ultimately help you.

jim-plitzContributed by Morris Hall, PLLC Albuquerque, Santa Fe and Las Cruces Estate Planning Attorney and Partner, James P. Plitz.

About Morris Hall, PLLC:
At Morris Hall, PLLC we have focused our legal practice on estate planning for over 45 years.  Along with estate planning, our attorneys help clients and their families with matters of probate, trust administration, wills, power of attorneys, business planning, succession planning, legacy planning, charitable gifting and other important legal aspects.  We also have divisions in financial, real estate and accounting to help you incorporate all of your planning together, ensuring that everything works perfectly for your needs and situation. Our Arizona offices are located in Phoenix, Mesa, Scottsdale, Carefree, Tucson, Oro Valley, Prescott, Flagstaff and Arrowhead.  Our New Mexico offices are located in Albuquerque, Las Cruces and Santa Fe.  Contact us today at 888.222.1328 to schedule an appointment!

This blog should be used for informational purposes only.  It does not create an attorney-client relationship with any reader and should not be construed as legal advice.  If you need legal advice, please contact an attorney in your community who can assess the specifics of your situation.

 

Non-Tax Reasons for a Estate Plan

By | Estate Planning, Estate taxes, Guardianship, Probate | No Comments

While taxes are an important element of estate planning, especially for those subject to state or federal estate taxes, consider the following important non-tax reasons to plan.

  1. Incapacity.  Are you going to become incapacitated? Of course, we don’t have a crystal ball to tell us the answer, so it’s vital that in order for someone to make your health care decisions, minimal planning is done. For example, executing powers of attorney can allow for others to make your healthcare and financial decisions should you be unable to do so.
  2. Divvying Up Assets and Avoiding Conflict.  Who gets your assets after you pass away? If you want a specific individual or charity to receive any part of your legacy, they must be clearly spelled out in an estate plan; if not, then the state statutes will dictate who is to receive your assets.
  3. Guardians.  A Will is the proper place to nominate guardians to care for minors or incapacitated people (like parents or grandparents) close to you.
  4. Managers.  An estate plan is how you designate who is to control the assets left behind.  For example, in a Trust, you can designate that your sister will manage a certain beneficiary’s assets until the beneficiary reaches a certain age.
  5. Probate. It is a public process which can be time consuming and very expensive. A properly drafted estate plan can avoid both a living probate (incapacity) and death probate (transferring of assets after one passes away).

 

As we head into a new year with possibly many goals to achieve, consider putting estate planning at the top of your goal list.

The attorneys at Morris Hall have 100’s of years of combined experience ensuring that families’ assets are protected from probate, unnecessary taxes, creditors, ex-spouses and Medicaid spend-down.  The attorneys also help those in Arizona and New Mexico to apply for and receive Medicaid assistance and Veterans Benefits.  Our Arizona offices are located in Phoenix, Mesa, Scottsdale, Cave Creek, Tucson, Prescott, Flagstaff and Arrowhead.  Our New Mexico offices are located in Albuquerque, Las Cruces and Santa Fe.  Contact us today at 888.222.1328 to schedule an appointment!

This blog should be used for informational purposes only.  It does not create an attorney-client relationship with any reader and should not be construed as legal advice.  If you need legal advice, please contact an attorney in your community who can assess the specifics of your situation.

Isn’t my Financial Power of Attorney Good Enough While I’m Alive?

By | Probate | No Comments

When we think of “Probate” most of us think that at our death this is how our “stuff” is distributed to our families. This is called a Death Probate. However, a probate can also happen when we are alive, but unable to handle our medical and financial affairs. This is called a Living Probate, hence, a probate while we are living.

A Living Probate is a court process essentially called a Guardianship and/or Conservatorship proceeding. This process requires a person to be appointed by the court to be able to make the medical and/or financial decisions for the incapacitated person. There are many disadvantages of a Guardianship/Conservatorship proceeding. The process is open to the public, time consuming, humiliating and expensive. On average, the cost of a Guardianship/Conservatorship is $5,000-$10,000. And, worst of all, the incapacitated person loses control of who is ultimately appointed.

A properly executed Financial Power of Attorney should allow the nominated agent the authority to manage the financial account(s) owned by the incapacitated person. However, sometimes there are financial institutions that have their own internal policies that require additional paperwork to be completed at the same time the Power of Attorney is being presented. It’s a catch twenty-two, because the reason the Power of Attorney is being used is because the person is incapacitated, so they would be unable to complete any additional paperwork at that time. Unfortunately, a court process to initiate a Conservatorship would have to happen for someone to be in charge of the particular account(s).

Depending upon the size of your estate, there may be alternative estate planning options to assure that your loved ones would never have to go through a Living Probate. Contact one of our estate planning attorneys for a no-cost consultation to review your individual situation.

About Morris Hall:
At Morris Hall, we have focused our legal practice on estate planning for over 40 years.  Along with estate planning, our attorneys help clients and their families with matters of probate, trust administration, wills, power of attorneys, business planning, succession planning, legacy planning, charitable gifting and other important legal aspects.  We also have divisions in financial, real estate and accounting to help you incorporate all of your planning together, ensuring that everything works perfectly for your needs and situation. Our Arizona offices are located in Phoenix, Mesa, Scottsdale, Cave Creek, Tucson, Prescott, Flagstaff and Arrowhead.  Our New Mexico offices are located in Albuquerque, Las Cruces and Santa Fe.  Contact us today at 888.222.1328 to schedule an appointment!

This blog should be used for informational purposes only.  It does not create an attorney-client relationship with any reader and should not be construed as legal advice.  If you need legal advice, please contact an attorney in your community who can assess the specifics of your situation.

Will Payable on Death (POD) or Transfer on Death (TOD) Avoid Probate?

By | Elder Care, Estate Planning, Estate taxes, Probate | No Comments

The answer is maybe.

There are two types of probate, a Living Probate and a Death Probate. To best illustrate both probates, here are two examples.

1) Sally is 42 years old and while driving to work gets into a car accident which leaves her in a coma. Sally is unable to make her own healthcare or financial decisions. Two years before the accident Sally filled out a POD form at her bank leaving the account equally to her 3 adult children. Will the POD form avoid a Death Probate? Yes, eventually when Sally dies; however, Sally is still alive, and unless she previously executed a Power of Attorney that the bank will accept, there will need to be a Living Probate initiated whereby a Conservator is appointed to manage the bank account on behalf of Sally.

Unfortunately, even with a properly executed Power of Attorney, a financial institution could require additional paperwork to be signed by Sally (who is unable to because she is incapacitated), and a Conservatorship would need to be filed with the courthouse.

2) Sally is 85 years old and dies in her sleep. Two years before she died, Sally filled out a POD form at her bank leaving the account equally to her 3 adult children. Will the POD form avoid a Death Probate? Yes, the account will be distributed equally between her 3 children, outside of a probate proceeding.

However, with the same facts, but 1 of the 3 children is a minor. Same result? No, the minor will not be able to receive the funds until he/she reaches the legal age of eighteen; a Conservator will have to be appointed by the court to be in charge of the funds until the minor reaches eighteen.

Same original facts, but 1 of the 3 children is receiving government benefits for special needs. This new inheritance will force the government benefits to cease until the inheritance is used up; and then a new application for government benefits would have to be initiated.

As these two simple examples illustrate, estate Planning involves planning for today while we are still alive, and also planning when we pass away. If you are over the age of eighteen, you should see one of our estate planning attorneys to discuss how we can help you and your family avoid both a Living and Death probate.

What the Attorneys of Morris Hall Can Do For You:

The attorneys at Morris Hall have 100’s of years of combined experience ensuring that families’ assets are protected from probate, unnecessary taxes, creditors, ex-spouses and Medicaid spend-down.  The attorneys also help those in Arizona and New Mexico to apply for and receive Medicaid assistance and Veterans Benefits.  Our Arizona offices are located in Phoenix, Mesa, Scottsdale, Cave Creek, Tucson, Prescott, Flagstaff and Arrowhead.  Our New Mexico offices are located in Albuquerque, Las Cruces and Santa Fe.  Contact us today at 888.222.1328 to schedule an appointment!

This blog should be used for informational purposes only.  It does not create an attorney-client relationship with any reader and should not be construed as legal advice.  If you need legal advice, please contact an attorney in your community who can assess the specifics of your situation.