My spouse is becoming very forgetful about things that would normally be remembered. I’m worried that the cause may be Alzheimer’s disease or other dementia. What should I do?

An obvious first step is to have your spouse checked out by a qualified physician. The doctor can determine what, if anything is actually wrong and recommend treatment. If the doctor’s diagnosis is dementia further legal steps to provide adequate legal protections are necessary.

It is important to have the doctor spell out, as clearly as possible; exactly what your spouse is capable of doing from a decision-making standpoint when the diagnosis is made. For example, can he or she identify and understand the extent of the property he or she owns and who his or her heirs are? Is he or she capable of understanding the nature of a transaction sufficient to enter into a contract? Can he or she identify those whom she trusts enough to manage his or her affairs in order to authorize them to do so?

If the answer to any of the above questions is “yes” then it is imperative to consult an elder and estate planning attorney in order to put your spouse’s legal affairs in order with documents such as Powers of Attorney for financial and medical affairs, wills, trusts, and any other documents which apply to her particular circumstances. By doing this, we can keep your life affairs private and reduce legal fees and court costs.

If the answer to the any of those questions is “no” it may be necessary to go into probate court and petition for a Guardianship and Conservatorship in order to take over management of your spouse’s personal and financial affairs.  This is an expensive, public process that requires ongoing court supervision. This scenario will often occur once a dementia patient progresses to later stages and no longer has the capacity to enter into legal documents that would eliminate the need for a guardianship or conservatorship. This is another reason for consulting a physician and an elder and estate planning attorney as early as possible. It is strongly recommended to have legal documents in place that provide others with authority to act on one’s behalf well before dementia or any other disabling condition rears its ugly head.

Most people in Arizona, and practically all married people here, have heard the term “community property.” Most people have a general idea of what it is, but most of us aren’t sure what makes property community property; whether we want something to be community property; or how to convert property into or out of being community property. These are important issues because they impact property ownership, particularly regarding division pursuant to a divorce, and may impact taxes and inheritance where divorce is not involved.

Property, including earnings, acquired during marriage, is legally presumed to be marital community property in Arizona. This presumption can be overcome by clear and convincing evidence to the contrary. Problems occur when such evidence is lacking.

For example, a property might be viewed as separately owned by one spouse, to the exclusion of the other spouse but, because of community property rights, the other spouse, has rights to that property. A piece of real estate may be mistitled in a way that causes capital gains tax advantages from community property status to be missed, causing an increase in tax liability. A piece of property is often labeled as separate in order to assure it stays in one spouse’s family where there is a second marriage and stepchildren. Again, this assumption is sometimes incorrect and the desired inheritance is missed.

At Arizona Mobile Attorneys we can advise you as to the status of property, the advantages and disadvantages of that status, and help you take actions to further your best interests regarding ownership, taxes, and inheritance regarding your property.

© 2024, ARIZONA MOBILE ATTORNEYS

Our clients have often asked us “Do I really need a will?  This question often comes up because the client feels that “the law will take care of it when I die”, or the client doesn’t think they have a lot of property or money to worry about, or because the client thinks that they have already disposed of their property by other means such as a deed, a beneficiary designation for an account, a trust, or some other transfer besides a will that, unlike a will, allows the client to avoid a probate procedure in Superior Court.

The law will only take care of distributing your property if the law follows the way you want the property distributed. People who want their property distributed in a specific fashion should not depend on state law to do that job for them.

The other reasons stated above may be reasons for believing that a will is not needed for the purpose of distributing their property on death, when looked at very narrowly; however, a will has other purposes as well.

First, a will is used to identify a person’s heirs under the law. It is important to do so because will contests are often based on a failure of the testator to adequately state who his or her natural heirs are. This indicates that the testator may lack capacity to make a will. Stating who would legally receive your property if you had no will and died immediately is an important way to lessen the likelihood of any contest, even if some or all of these heirs will not be receiving anything from the will. Stating who your heirs are together with a statement in the will that specifically disinherits any or all of them can be very effective in disinheriting heirs if that is desirable.

Persons with minor children can nominate a guardian for them in their will. Such a nomination will be prioritized by the court over others who might be asked to be so appointed.

Even in the case of a small estate (in Arizona this would mean personal property of $75,000 or less and Real Estate of $100,000 or less) being named in a will entitles a person to utilize a much abbreviated probate procedure for small estates.

Finally, a will is a fail-safe document for property that is never placed in a trust or otherwise transferred outside of the jurisdiction of a probate court. A great example of using a will in this manner in conjunction with a trust is through a pour-over will. This type of will transfers any property subject to a probate proceeding into an existing trust to ensure that the trust provisions for distribution of the property will be applied.

            The older we get the more conscious we become of the need to put something in place to protect our heirs from the hardship of a death without estate planning. The present time is always the best time to take care of that.

            Sometimes we find ourselves in a situation where there is a need to change arrangements we have already made, for instance:

• We have an older trust that was made for reasons that are unnecessary now. For example the threshold for being liable for any estate taxes has increased from about $600,000 to about $12 million dollars in the last 20 years, yet people still have overly complex trust documents to deal with estate tax liability.
• Things have changed over time and you want to change your beneficiaries.
• You have a trustee that you no longer want to have serve, or who has died, and you want to make a change.
• You have a beneficiary who does not manage their money effectively and you want an alternative to leaving them a huge sum of money all at once.

Again, there is no time like the present to address these types of issues. Arizona Mobile Attorneys has extensive experience in this area and we stand ready to assist you in this endeavor.

© Arizona Mobile Attorneys

Often, a business, typically a limited liability company (“LLC”) is created as part of an estate plan. This is done because LLCs are somewhat informal business entities and are easy to administer compared to a Corporation. In addition, unlike a Trust, an LLC can continue in existence indefinitely. These types of arrangements are often used to deal with a specific asset, such as a home, vacation cottage, or other real estate. A new federal law called “The Corporate Transparency Act” is going into effect January 1, 2024 with new requirements for companies and very severe penalties for noncompliance, with civil penalties up to $500 per day, with a maximum cap of $10,000. Willfully providing false information in such reporting carries a prison sentence of up to two years.

These penalties are applied to beneficial owners and senior company officers.

This law requires the disclosure by companies of the beneficial ownership in the company (any individual who owns at least 25% of the company is considered a beneficial owner). A new system called BOSS will be made available for companies to report this online. Companies that already exist as of January 1, 2024 will have until the end of the year to comply. Newly formed companies will have 30 days to do so from formation or registration.

At Arizona Mobile Attorneys we assist clients in the formation of businesses and related estate and succession planning. Please call us to arrange an appointment.

© 2023, Arizona Mobile Attorneys