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

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