Generally, a will executed in another state is valid under Arizona law if it meets the legal standards of the state it was executed in at the time of execution. Despite this general rule, such a document will run into legal difficulty if it contains provisions that are contrary to specific Arizona legal requirements.

            A common problem occurs when the originating state is not a community property state. Arizona is a community property state and that body of law may be applied to the will rather than the law of the originating state, regardless of what the testator (person who is making the will) might have intended.

            Additionally, Arizona law provides for self-proving wills. These are wills that have two witnesses as well as a notary signature.  They are presumed valid by the court and typically require no further action to validate. Wills that are not self-proving typically require further testimony, after the testator’s death, from witnesses regarding the signature, intent and/or state of mind of the testator, in order for them to be admitted to probate. This can be substantially inconvenient, or even impossible, if any of the witnesses are no longer available (deceased, or whereabouts unknown).

            Typically, when a will has been drafted and executed outside of Arizona some time has passed since its execution, since the Testator has since moved out of that state. Family and property may have also relocated or changed. Many other changes in circumstances may have occurred as well that affect your estate planning. Changing circumstances as well as legal concerns are very good reasons to have your will and entire estate plan reviewed.

            At Arizona Mobile Attorneys we will review your document and help you determine whether you have any of these issues and develop corrective measures when necessary.

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The short answer to this question is YES!  If someone is a beneficiary under your current estate plan and/or who is a primary heir (spouse, child or child of a deceased child, etc.) it is very important to review your estate plan to assure that the new primary heirs are accounted for and that inheritances are accordingly adjusted.

Often wills and trusts express gifting in terms of percentages. If someone dies those may need to be adjusted. In addition, when someone dies, you may wish to keep the property at the same generation, or you may want to disperse at the next generation under the deceased person (there are other possibilities as well).  This will likely affect the percentages that have in place prior to the death of the beneficiary.

It is also important that when you review the plan and make adjustments, that those adjustments at least recognize any new legal heirs so that they cannot claim that you “forgot” them, are suffering from memory loss or are otherwise not capacitated, giving them an opening to attack your estate plan.

At Arizona Mobile Attorneys we will thoroughly review your plan in order to assure that your property is transferred to loved ones in an orderly manner that fully minimizes the likelihood of anyone challenging the plan you fully intend to have enacted.

1. Verify that that you have taken steps to assure that all of your property (real estate, personal belongings, financial accounts, etc.) will be disposed of outside of probate and that such designations are accurate.

• Verify that your fiduciaries- Will personal representative/executor, power of attorney agents, and trustees are alive and accurate.

• Verify that everything that is supposed to be in a trust is renamed to the trust.

© 2026, Arizona Mobile Attorneys

Many people often mistakenly believe that they can avoid probate simply by writing and signing a legally valid Last Will. This is a mistake that can often cause a lot of extra expense and other headaches for loved ones whom we leave behind.

Probate is an Arizona Superior Court process in which the property of a deceased person (“decedent”) is distributed. It covers any property of the decedent that is left in their own name without any measures taken to assure that the property is transferred outside of probate at death.  Probate occurs in cases where there is a Will as well as in cases where there is no Will. If there is no Will then the decedent’s property passes in accordance with the Arizona laws of Intestacy. Where a Will exists it serves as direction for the court and the Personal Representative (formerly called an executor) regarding how the property is to be distributed under the probate process.

It is important to avoid the probate process in the vast majority of instances because it is an unnecessary use of time and expense. There are a number of means for avoiding probate and each have significant advantages and disadvantages depending on the circumstances.

 For example, people often choose to create joint ownerships which will avoid probate by adding a child or other person who is not a spouse as an owner on a bank account or other financial account. While this is a fairly simple way to remove that asset from any probate, it also leaves the person’s assets exposed to liability for unlawful acts, both negligent and intentional, of the person they are naming as a joint owner.

Persons also sometimes make gifts of their property while they are living to avoid any probate. This presents a problem with capital gains taxes because when the person receiving the gift eventually sells it their profit (capital gain) is measured against what the decedent paid for the asset, causing a higher gain and a higher potential tax bill.  When gifts are made at death their “cost” is stepped up to the market value of the asset at the time of death which is typically much higher and amounts to zero capital gain at death since cost and value are equal at death.

At Arizona Mobile Attorneys we can talk with you to determine your estate planning needs and the best way to avoid any probate, evaluating and comparing the various mechanisms for efficiently accomplishing your objectives. Please contact us for a consultation.

© 2025, Arizona Mobile Attorneys

Every adult over 18 should have a durable power of attorney in place to guard against the possibility of becoming disabled or incapacitated. If a such a condition were to occur without having this document in place your loved ones would be forced to apply for a Guardianship and Conservatorship subject to court approval and ongoing court supervision in order to manage your affairs, on your behalf; an often highly expensive proposition.

A durable financial power of attorney is a document that is used to empower another person to handle your financial, banking, bill paying, property, and business affairs. It is referred to as durable because it is not cancelled if you become disabled or incapacitated (unlike other powers of attorney). Such a document is only cancelled if revoked by the principal who gave the power or by that Principal’s death.

There are two basic forms of Durable Power of Attorney for Finances: An ”immediate” power which gives the agent the power to act at the time the power is executed; and a “springing” power which “springs” up in the event of incapacity or disability that prevents you from acting for yourself. In most cases our firm recommends an immediate power so that the agent can act quickly in urgent situations. This avoids the pitfall of having to wait for a physician determination of incapacity in order to act in such cases of urgency.

Because an immediate power authorizes the agent to act in the principal’s place while you are able to act on your own it is very important to select an agent who is financially astute and of course highly trustworthy. Abuse, fraud, and financial exploitation are commonplace and selection of an appropriate agent with a solid moral character is a good first line defense against those problems. It is also very important to choose an agent who will be available to do what is necessary and who can effectively communicate and execute the Principal’s interests.

Agents are legally obligated to put the interests of the Principal first, including at the subordination of their own interests. In addition Arizona has comprehensive felony criminal and civil laws to protect the Principal from unscrupulous agents.

At Arizona Mobile Attorneys we do comprehensive capacity planning along with our estate planning service. We would be happy to help you with this endeavor.

© 2025 Arizona Mobile Attorneys

The vast majority of married couples operate on the principle of “share and share alike.”  However there are situations where married couples may be better served by keeping property separate.  This occurs often in various situations, most commonly where one or both spouses have children from outside their current marriage, there is an imbalance in wealth between the spouses, or they simply have differing goals regarding their estate planning based on particular needs or obligations.

One of the best ways to accomplish separation of property between spouses is through the use of Separate Living Trusts and transferring their property into these trusts in a manner that eliminates any joint or community property title to the property and provides clear separate ownership in each spouse.

 Once this separation is accomplished the spouses can each customize their inheritance plans to support their own estate planning goals, including specifying heirs, any philanthropic goals, and any other specific needs or obligations (such as financial autonomy or support of family members), as well as supporting any necessary tax planning.

Separate trusts are a great tool for couples who wish to maintain financial independence, protect their separate property, and customize their estate plans. However, the decision to establish separate trusts should be made in consultation with an experienced estate planning attorney who can tailor the structure to the couple’s unique circumstances and goals. At Arizona Mobile Attorneys we stand ready to help you accomplish these important goals.

© Arizona Mobile Attorneys

By Michael G. Kelly, Esq., Arizona Mobile Attorneys

As people age they become more vulnerable, both physically and mentally. If they live alone this vulnerability can be worsened by feelings of loneliness and depression. This vulnerability can lead to various forms of abuse of the elderly by others. The most common of these is financial exploitation.

Financial exploitation can take various forms. The most common are when a person the elder is depending on for care or emotional support convinces a vulnerable elder to transfer assets the elder owns to that person, such as by adding them to a bank account or as a death beneficiary on the account, or by deeding their home to them. This type of conduct need not be accompanied by threats or coercion in order to be deemed unlawful financial exploitation of a vulnerable adult. It most often occurs with elderly females who live alone or with the abuser (75%).

Fortunately Arizona has laws that aggressively deal with situations where persons take advantage of vulnerable elders to financially exploit them. Exploitation of a vulnerable adult falls under the theft statute in Arizona and can carry a 5 to 12.5 year prison sentence.  In addition an elder, or those assigned to protect the elder, may file a law suit to recover damages up to three times the actual damages caused.

If you have been exploited or know a vulnerable adult who has you should take action immediately to report the criminal activity to an attorney representing you, to local police, or to the Attorney General of Arizona. This will help to stamp out this type of exploitation and help you recover the vulnerable elder’s property. At Arizona Mobile Attorneys we stand ready to aggressively attack this assault on our elders.

1. Review Your Estate Plan Documents

• Will: Confirm that it reflects your current wishes, including asset distribution and guardianship for minors.
• Trusts: Review the terms, beneficiaries, and funding status of any trusts.
• Power of Attorney (POA): Verify the appointed agent is still appropriate and willing to serve.
• Advance Healthcare Directive: Ensure your healthcare preferences are clearly stated and your healthcare proxy is still suitable.

2. Evaluate Beneficiary Designations

• Retirement Accounts (401(k), IRA): Ensure listed beneficiaries are current.
• Life Insurance Policies: Check that the primary and contingent beneficiaries are accurate.
• Payable-on-Death (POD) or Transfer-on-Death (TOD) Accounts: Verify designations on bank and investment accounts.

3. Assess Financial Accounts and Property Titles

• Joint Accounts: Review ownership and rights of survivorship.
• Property Deeds: Confirm titles align with your estate planning strategy (e.g., owned by a trust).

4. Consider Changes in Personal Circumstances

• Family Changes: Births, deaths, marriages, or divorces may require updates.
• Executor or Trustee Changes: Ensure your chosen individuals are still the best fit.
• Health Changes: Adapt your plan for any new medical or care needs.

5. Review Tax Implications

• Estate Tax Thresholds: Ensure your plan addresses current federal and state estate tax laws.
• Gifting Strategies: Consider making tax-free gifts to reduce your taxable estate.

6. Update Digital Asset Plan

• Online Accounts: Include updated passwords and access instructions for email, social media, and financial platforms.
• Digital Legacy: Designate someone to manage your digital presence after death.

7. Address Business Interests

• Succession Planning: Ensure business transition plans are in place if applicable.
• Buy-Sell Agreements: Review terms and funding methods.

8. Secure and Share Your Plan

• Document Storage: Store originals in a secure location (e.g., safe or safety deposit box).
• Access for Key Parties: Ensure your executor, POA, and trustees know where to find documents.

9. Meet with Professionals

• Estate Planning Attorney: Discuss updates to laws or changes in your circumstances.
• Financial Advisor: Align your investments with your estate plan.
• Tax Advisor: Confirm your plan minimizes tax liabilities.

10. Reflect on Your Legacy Goals

• Charitable Giving: Consider incorporating charitable donations.
• Family Values: Ensure your plan reflects your wishes and communicates your values.

By performing this review annually, you can start the new year with confidence that your estate plan is current and complete.

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?

1. Medical Evaluation
   • Schedule an appointment with a qualified physician (ideally a neurologist or geriatric specialist) to determine the cause of your spouse’s forgetfulness.
   • Conditions like depression, vitamin deficiencies, or medication side effects can mimic dementia, so it’s important to get an accurate diagnosis.
2. Understand Decision-Making Capabilities
   • Once a diagnosis is made, ask the doctor to assess your spouse’s cognitive abilities, particularly regarding their capacity to make decisions about their affairs.
   • Questions to ask include:
     • Can they understand the extent of their property and identify their heirs?
     • Are they capable of understanding contracts or legal documents?
     • Can they recognize and trust individuals to manage their affairs?
3. Legal Preparation
   • If the Spouse Has Capacity:
     • Consult an elder and estate planning attorney immediately.
     • Prepare key documents such as:
       • Durable Powers of Attorney (for financial and medical matters)
       • Wills
       • Trusts (if appropriate)
     • Early action can reduce future legal and financial complications.
   • If the Spouse Lacks Capacity:
     • You may need to petition for Guardianship (personal affairs) and Conservatorship (financial affairs) in probate court.
     • This process can be costly, time-consuming, and public, so early intervention is crucial to avoid it when possible.
4. Proactive Measures
   • If there’s no formal diagnosis yet, but you’re noticing changes, encourage open communication with your spouse about their wishes and plans while they’re still able to articulate them.
   • Even without dementia, everyone should have an updated estate plan and healthcare directive in place to prepare for unforeseen circumstances.
5. Seek Support
   • Caregiving for someone with dementia or cognitive decline can be overwhelming. Look into support groups, caregiver resources, and community services to help manage the emotional and practical aspects.

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