© 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
2. Evaluate Beneficiary Designations
3. Assess Financial Accounts and Property Titles
4. Consider Changes in Personal Circumstances
5. Review Tax Implications
6. Update Digital Asset Plan
7. Address Business Interests
8. Secure and Share Your Plan
9. Meet with Professionals
10. Reflect on Your Legacy Goals
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?
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:
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