Estate Planning

We can help you create an estate plan to transfer your property to your loved ones in an orderly fashion upon your death. An estate plan can help your family avoid probate after your death, can minimize or eliminate any taxes that must be paid upon your death, and can provide for the orderly transfer of the care of your assets if you become incapacitated. Documents that will we consider when preparing an estate plan for you are the Revocable Living Trust Agreement, Last Will and Testament, General Durable Power of Attorney, Health Care Power of Attorney, and Living Will.

If you are an Arizona resident when you die and you do not have any sort of estate plan, state law determines what happens to your assets upon your death. In order for you to make the decision about what should happen to your assets yourself, you need some sort of estate plan.

Revocable Living Trust Agreement

The Revocable Living Trust Agreement is a popular estate planning tool in Arizona. It has three primary purposes. First, it avoids probate upon your death if your assets are re-titled into the name of the trust. Second, if you are married, it minimizes or eliminates any estate tax that might otherwise be due upon your deaths. Third, it provides a trusted loved one, family friend or professional fiduciary the authority to manage your affairs while you are still alive if you can no longer take care of your affairs yourself.

A Revocable Living Trust Agreement may have any number of secondary purposes. It might preserve inheritances for your children until they reach certain ages or stages of life. It might provide supplemental care to a beneficiary on public assistance in a manner that does not jeopardize the benefits. It might protect an inheritance from a beneficiary’s creditors and make sure that it is the beneficiary who benefits.

A Revocable Living Trust Agreement is fully amendable or revocable during your lifetime. You will retain full control over the trust and any assets that you place in the trust while you are alive.

You will be the Trustor, the Trustee and the Beneficiary of the Revocable Living Trust. If you are a married couple, you will likely be the Co-Trustors, Co-Trustees and Co-Beneficiaries of the trust. The term “Trustor” is just a legal name for the person who sets up the trust, but the Trustor also has the authority to amend or revoke the trust. (Co-Trustors’ authority to amend or revoke the trust may be limited after the death of the first spouse to die if the trust includes estate tax planning provisions.)

The “Trustee” is the person or organization that manages and controls and any assets that are owned by the trust. The Trustee is required to comply with the terms of the Revocable Living Trust Agreement when exercising their authority. You will name the person or institution who will serve as Trustee after you are no longer able to serve yourself.

The Beneficiary is the person who is entitled to the benefit of the trust. While you are alive, the trust will be for your benefit. After your death, the trust will designate how the trust property should be divided and those persons or organizations will then become the Beneficiaries.

A Revocable Living Trust Agreement is only effective to avoid probate if either your assets are titled in the name of the trust or if the assets become subject to the trust upon your death. For example, your home and bank accounts should be titled in the name of the trust if probate of those assets is going to be avoided. As an example of assets that would become subject to the trust upon your death, we will likely recommend that the trust be named as the beneficiary of your life insurance policies so that the proceeds are paid directly into the trust upon your death.

The Revocable Living Trust Agreement is a useful tool, but it isn’t for everyone. One of the objectives of our early consultations will be to determine the right estate plan for you. We can help you review your objectives and find the right estate plan to fit your needs.

Last Will and Testament

The Last Will and Testament is the legal document most often used in estate planning. There are specific legal requirements governing Wills and how they need to be signed and witnessed. In effect, the Will is your instructions to the probate court about what you want to have happen to your assets and who you want to wind up your affairs.

Unlike a properly drafted and funded Revocable Living Trust Agreement, a Will requires probate to be effective. If you only have a Will and do not have a Revocable Living Trust Agreement, it may be necessary to probate your estate.

Moreover, a good estate plan will include a Will even if you have a Revocable Living Trust Agreement. The simple reason for this is that sometimes assets will not be properly funded into your Revocable Living Trust during your lifetime. A common example is the person who opens a new bank account but forgets to title the new account in the name of the trust. In that situation, the Will will direct that any assets that are not already in the trust will be transferred to the trust upon your death. We call this type of Will a “Pourover Will”.

We can help you with the preparation of your Last Will and Testament.

General Durable Power of Attorney

A General Durable Power of Attorney is a document that appoints a person to handle your financial affairs. We recommend that you have a General Durable Power of Attorney in case you become incapacitated later in life. If you are unable to handle your own business affairs, the person that you appoint in your General Durable Power of Attorney document will be able to handle matters for you.

If you do not have a General Durable Power of Attorney and you become unable to handle your own business affairs, it will be necessary for someone to go to Court and ask to be appointed as your Conservator. This is a time-consuming and expensive process and the person who will be appointed as your Conservator may not be the person that you would prefer. A Conservatorship can almost always be avoided with a properly executed General Durable Power of Attorney.

We can help you by preparing a General Durable Power of Attorney for you and with helping you select the right person to be your agent.

Health Care Power of Attorney and Living Will

The Health Care Power of Attorney is a document that appoints a trusted person to make medical decisions for you if you are not able to make them yourself. We recommend that you have a Health Care Power of Attorney in case a medical decision needs to be made on your behalf at a time when you are not able to make the medical decision yourself. A well-drafted Health Care Power of Attorney will allow the person you name to make any kind of medical decision for you.

A Living Will states your decision about whether you would want life support and other medical procedures to be started or continued if you are in a terminal condition or irreversible coma. Many people indicate that they would want life support discontinued if doctors found that they were in a terminal condition or irreversible coma.

If you do not have a Health Care Power of Attorney or Living Will and medical or end-of-life decisions need to be made for you, it will be necessary for someone to go to Court and be appointed as your Guardian.

We can help you by helping you decide what treatment decisions should be made if you cannot make them yourself and by preparing a Health Care Power of Attorney and Living Will.