Law Firm of James A. Robles

Arizona estate planning, asset protection, and injury law firm

Estate Planning

Create Your Estate Plan to Avoid Will, Trust, and Estate Litigation

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Your estate plan is the best way to ensure that your assets are distributed according to your wishes. Wills and trusts may appear rather confusing and more effort than they’re worth, but they are invaluable tools to avoid probate court.   These documents could save your loved ones and beneficiaries from litigation over possessions, land, and other assets.  A trust will help to keep any arrangements clear.

You should try to avoid probate court because the process can be costly, time consuming, and damaging to personal relationships. Also, if your gifts are not clearly written in a valid will or trust, it is possible that your estate will be distributed according to Arizona statutes. The court could rule that your intended beneficiaries will not receive the gifts you intended. This could clearly result in distributions that are far from your wishes. Although litigation may resolve a dispute, the parties pay in other costs, that include spending valuable time away from work and family.  The probate court case could actually cost more than the amount decedent’s are fighting over. For this reason, we recommend that you avoid probate litigation and here are some tips on how:

Call Experienced Estate Planning Counsel

Consulting with an experienced estate planning lawyer is the best way to avoid probate court. Experienced counsel James A. Robles collaborates with you to ensure your documents are legally binding and enforceable should the worst happen. The estate planning process involves thorough discussion about your assets, and people and organizations important to you. Listening and understanding your wishes for whom you want to provide after passing is crucial. Only after understanding your wishes can we advise about your available options. There is no “one size fits all” estate plan at the Law Firm of James A. Robles, PLLC. While a trust may be desirable for one person, for others, it could be costly and unnecessary. Only after you understand your options and your decisions will we draft your tailored estate plan documents.

Drafting the documents is only the first step. Proper execution of the documents is essential to ensure the documents are legally enforceable. For example, a court could rule that a will is invalid because the decedent failed to execute the documents according to Arizona requirements. Other life changes such as divorce or having children could call the will’s validity into question.  Calling the Law Firm of James A. Robles will ensure that the documents are proper and enforceable under Arizona law.

Special Tools and Procedures Could be Recommended

While unfortunate, some people know family members who may try to “stir the pot” or engage in unethical conduct to bypass your desires. We may recommend an in terrorem clause, which means that anybody who objects could immediately void their gift. While not useful in all circumstances, the “no contest clause” is a potent deterrent to unwanted probate litigation.

People crafting their estate plan must be “of sound mind” and under “no undue influence.” Sometimes a medical condition could cause question about whether those conditions are met. In turn, those questions can give rise to probate challenges. We may recommend that the estate planning client undergo capacity tests by a qualified medical professional. The results could mean the difference between avoiding any probate proceedings or your beneficiaries having to defend your documents in court.

A Complete Estate Plan Package Should Include Your Powers of Attorney

While the discussion so far focused on a properly executed last will and testament and possibly a living trust, proper power of attorney is an important component of your estate plan. In general, a power of attorney is a legal tool that allows you, as a principal, to appoint an agent to conduct business and make decision on your behalf. Unlike wills and trusts, powers of attorney have no legal authority after the principal passes. The power of attorney may be useful when you are unable to communicate or conduct business on your own behalf.

The power of attorney contains the limits the the authority granted to the agent. For example, a general durable power of attorney may give your agent authority to conduct certain business relating to banking, financial matters, mortgages, insurance, and even taxes. A general durable power of attorney can also exclude certain powers.

A healthcare power of attorney grants your agent authority to make your medical decisions when you cannot communicate your choices. Medical providers, including hospitals, require that your agent present a valid healthcare power of attorney. Hospitals could require a healthcare power of attorney to comply with medical privacy regulations. The hospital will also need to verify that the proper person is making critical healthcare decisions. Our estate planning packages also include a living will (distinguished from a last will and testament) that allows you to make predetermined choices about the medical care you desire, or wish to forego.

Call the Law Firm of James A. Robles, PLLC Today to Talk about Your Estate Planning Goals

Estate planning provides the peace of mind that your wishes will be honored after passing. Call James A. Robles today to schedule a time to discuss your estate planning questions, concerns, and goals.

The Probate Process: A General Overview

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Consulting with an experienced probate lawyer could provide invaluable help in navigating the probate system. Addressing the items a loved one leaves behind after they pass is challenging. Maneuvering through tangled legal rules while handling the trauma of losing a loved one is stressful. However, addressing the decedent’s Estate is an important process that must begin. It is important to note that some legal statutes of limitations periods start when the decedent passes. Whilst some people will think of the sentimental items, others will think of items with monetary value. How does the probate system address competing claims? What happens to these key items? Have any parties claimed unsettled debts? Probate law evolved over hundreds of years and forms our current legal system designed to determine who is entitled to the decedent’s assets.

If probate is required, someone must apply to validate the will in the Superior Court. The decedent’s will may designate the appropriate person to file this application. If none is designated, Arizona statutes control who has authority to file. If validated, the Court will issue Letters of Appointment to the Personal Representative, sometimes known as an executor. The Personal Representative may be someone named in the decedent’s Last Will and Testament, or is otherwise selected from a list of persons designated in Arizona statutes. The Personal Representative plays an important role. Their tasks include identifying Estate assets, paying outstanding taxes and debts, asset appraisal, and distribution of the remaining Estate assets.

Is Probate Necessary?

Whether a probate case must be filed does not depend on if the decedent had a will or died without a will. If assets valued over more than an amount specified in Arizona statute remain titled in the decedent’s name, probate will probably be required to distribute those assets. Probate can be avoided if the decedent handled Estate Planning before their passing:

•    ‘Payable-on death’ or ‘transfer-on-death‘ designations for certain types of accounts
•    Establishing a Trust along with a Last Will and Testament
•    Making beneficiary designations for certain types of assets
•    Giving away possessions before death
•    Changing assets into joint tenancy

Such steps, if completed before passing, could function to avoid probate. For example, giving away possessions means that they will have reached their intended owners before death. Changing assets into a joint tenancy will ensure that the joint owner takes over after death. By having these steps in place, there is no confusion as to what should happen after passing away. Note that some of these tools could result in unintended consequences. One example is if the person named as a beneficiary predeceases the decedent. Then what happens to that asset?

If you want to avoid your beneficiaries and heirs having to file a probate matter in Superior Court after passing, consult with experienced Mesa probate lawyer James A. Robles to discuss available options to distribute your Estate without needing Court intervention.

What are Living Wills?

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Consult with an experienced estate planning attorney about your living will. A living will addresses medical care choices, not matters contained in a last will and testament. A living will is not simply another name or type of last will and testament. While the jargon and terms are sometimes confusing, understand that the living will addresses your health care desires decisions. Your living will tells the world the medical care you desire when you can’t communicate your own wishes. Unlike the last will and testament, the living will in no way addresses questions about your property. If you haven’t yet looked into living wills, now could be the time because it could be one of the most important documents you sign.

In designing your living will, you will want to let your loved ones know your wishes about treatment for end-of-life medical care. The living will provides invaluable guidance to your family, friends, and medical professionals because the document expresses your wishes when you are not able to communicate. The living will removes the “guess-work” when your family or trusted loved-ones need to make critical medical decisions. Rather than guessing the medical procedures you are willing to tolerate, or which you desire to undergo, your medical decision-makers (usually identified in your Health Care Power of Attorney) will have the guidance needed to make an informed decision.

Unlike a last will and testament, the living will has no power after death. Living wills are also called advanced directives or directives to physicians. No matter the term , the living will allows you to communicate your decisions when you are not physically – or mentally – able to do so yourself.

Creating a Living Will – There are two main options to design and draft your living will. You may consult with an attorney or create your own. There are strict rules that govern the form and procedure to execute a living will. In Arizona, you will have to sign the document in front of one witness or a notary public. There are limitations on who can serve as a witness or notary public. Your living will is valid once you have properly completed the document according to Arizona statutes. States vary in their requirements to execute a living will. Keep your original living will in a secure place. Consider providing a copy to your heath care agent, named in a Health Care Power of Attorney.

Consulting with an estate planning attorney will benefit you in several ways. There is peace of mind in knowing the document meets Arizona statutory requirements. Learn how your agent could interpret your wishes in varying medical situations. For example, one’s health care choices may be different if they are involved in a serious accident, as opposed to having been diagnosed with a serious long-term illness. Also, you will want to review your documents to see if your designations still apply to your circumstances. Call the Law Firm of James A. Robles, PLLC to discuss whether a living will is good for you, how to complete a living will, and to whom should be given a copy of your living will.

Do I need a Health Care Power of Attorney?

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Like with your house or any other property you own, you may appoint a health care power of attorney (HCPOA) who will make critical decisions regarding your health. When correctly established, you will be named as the ‘principal’ and you may choose your ‘agent’. When it comes to health, they are potentially the most important decisions that we have to make and so appointing a HCPOA that we trust can be pivotal for when we are no longer able to make such decisions. If you happen to be in a poor state of health, your trusted ‘agent’ will be able to make decisions on your behalf judging by discussions you may have had previously.

Determination of Powers – What power does the agent hold if you’re unable to make an important decision and to what extent do you have a say over these powers? Nowadays, you will always have a say over your health and health care as long as you are of a sound state of mind. When you appoint a HCPOA, this doesn’t change and you can grant the powers with which they will be given in any given circumstance.

Furthermore, you can provide as much detail as you want, cancel your HCPOA if you’re of a sound state of mind, and even appoint a backup agent just in case the primary agent cannot or will not make a decision. Generally, the following decisions will be in the hands of your health care POA agent:

• When life-sustaining treatment should end
• What treatments should be declined due to personal or religious reasons
• Life-sustaining treatments and any decisions that comes along with the process
• What to do after you pass away
• Whether your tissue and organs are donated for therapeutic purposes or your body will be given to medical research

Many of these topics are quite broad, therefore, we advise to provide as much detail as possible. Your agent should be aware of exactly what you want in each circumstance. In addition to being able to cancel or assign a backup, you can also set a time limit on the HCPOA. You may choose to appoint an agent for life.  However, some choose to appoint an agent until a certain age so it all depends on your beliefs and what your main aim of the agent will be.

A health care POA is essentially the same as any other power of attorney but addresses your health and medical care, not your financial or business decisions. You control the time you remain in this ‘agreement’ as well as assigning a backup and cancelling at any point in time.

Keeping Track of Beneficiary Designation Forms

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As you pass through life, you will have undoubtedly filled out some beneficiary designation forms. Whether you’re purchasing a new life insurance policy or simply opening a new bank account, this simple document states to whom the money should be passed if you happen to pass away. Over time, you may forget about certain accounts and who the beneficiaries are which is why it is important to review your beneficiary designation forms often. As long as you keep track of these forms, your money will end up with the desired beneficiary in the event of your passing.

Life Insurance – Overall, this is one of the easiest to change and you can do so by simply updating your beneficiary designation form. After doing so, you should always phone your insurance company to ensure that it all passed through correctly. Remember, you may have smaller insurance policies through work or personal ventures so you will have to update them individually.

Bank Accounts – With most bank accounts, you will be able to make the most of a ‘Transfer of Death’ designation form. With this set up, your desired beneficiary will simply have to take your death certificate into the bank and they will have access to your funds. Often, this is the preferred method because it doesn’t require a specific name and you won’t have to review it every few months.

Health Insurance Savings – To prevent your estate from being billed the medical costs, ensure that your heirs have access to your health insurance savings. For up to a year after you pass away, your family and friends will be able to use these funds to pay for medical expenses.

Retirement Funds – Over the years, we tend to accumulate a number of different retirement accounts and they each have a beneficiary designation form. If this is the case, you will need to maintain these accounts and ensure that you always have the right name on them. If you find it hard to keep up with them all, why not roll all your accounts into one Individual Retirement Account (IRA) to have just one beneficiary form and one name?

Trusts and Wills – Despite popular belief, the names on your individual accounts will actually override what is stated in your will so it is important to review these documents often.

Too often, families are left with a mess of a financial situation and family members don’t get the money or possessions they feel they deserve. For this reason, keeping track of your beneficiary designation accounts is one of the most important things you can do. As long as you remember to keep on top of them and check them often, they will remain in order and the correct money will be left to the correct person.