Dean Smith, the great basketball coach for the University of North Carolina, Chapel Hill, died recently at the age of 83. His reputation among the UNC alumni and athletic department would go so far as lauding him as revered. One of professional basketball’s greatest all-time players, Michael Jordan, was quoted after the passing of his college coach, “Other than my parents, no one had a bigger influence on my life than Coach Smith. He was more than a coach—he was my mentor, my teacher, my second father. Coach was always there for me whenever I needed him and I loved him for it. In teaching me the game of basketball, he taught me about life.” This is high praise from one legend to another. [Read more…]
Since the downturn in the Arizona real estate market and increase in the number of loan defaults and foreclosures, lenders and borrowers have fought over the interpretation of Arizona’s so-called anti-deficiency statutes.
Disputes between lenders and borrowers have involved, for example, (1) what is a dwelling? (2) does a dwelling have to be someone’s primary residence? (3) what is a purchase money loan? (4) does a construction loan qualify as a purchase money loan? and (5) can an incomplete dwelling still be considered “limited to and utilized for either a single one-family or single two-family dwelling?” This post focuses on the last issue, recently addressed by the Arizona Supreme Court.
But, before addressing that, I will cover the basic requirements to qualify for protection.
After the passing of a loved one, family members and friends normally gather to find solace or to celebrate the person’s life. Or at least that is the order and manner in which most people would wish to be remembered. To this end of allowing space to grieve, creating estate planning documents should assist the bereaved in efficiently handling their loved one’s worldly affairs. However, conflict can still occur between family members. And, conflict is more likely when the estate planning documents have gaps or are subject to differing interpretations.
Sadly, this appears to be the situation with the trust of Robin Williams, the late comic actor. As his family works through a trust dispute in court, the public may learn some valuable lessons on how to better prepare for (or ways to avoid) similar situations.
Beloved comedian and actor Robin Williams passed away suddenly in the summer of 2014, leaving fans and family in shock over the loss. Now, as the trust’s administration and distribution gets underway, Mr. Williams’ family has become embroiled in a trust dispute over the allocation of specific personal memorabilia and other property. The problems allegedly stem from a lack of specificity in the trust that was prepared presumably by an attorney and relatively recently executed by Mr. Williams on June 24, 2010 and amended and fully restated on January 31, 2012.
Beneficiaries beware! The Arizona Court of Appeals has concluded that someone who challenges a trust may be disinherited for violating a “no-contest” clause.
A no-contest or forfeiture clause is a provision included in a will or trust to discourage litigation and disputes. Such provisions have obvious benefits of avoiding litigation and allowing the prompt distribution of trust or estate assets.
But, there are conflicting public policies when it comes to enforcing such clauses. Courts have a strong public policy of enforcing the maker’s intent, including his direction to disinherit someone who challenges the document. Such challenges sometimes waste time and money. A contestant may also use such a challenge to coerce a more favorable disposition in settlement from other beneficiaries than what the maker intended.
On the other hand, forfeiture is generally disfavored. And public policy typically ensures access to the courts to pursue legitimate challenges. Such challenges may include, among other things, that the maker lacked mental capacity, was unduly influenced or defrauded into making the will or trust. In those cases, the document does not reflect the maker’s true intent. If a challenge were not permitted, it would allow the enforcement of a document that does not genuinely set forth the person’s true intent for the disposition of his assets. [Read more…]
The old saying that celebrities are just like us with more money holds true in some cases, but it definitely holds true in the realm of probate, trust administration, and estate planning. Celebrities make mistakes in timing, selecting a plan, holding onto outdated plans, or just failing to put anything in writing. Handling an incomplete or unnecessarily complicated probate or trust administration can leave even the strongest families feeling confused and frustrated during a time of grief. Failing to plan can have devastating financial repercussions as well. We can all learn more by observing the way public figures plan and then handle their otherwise private family affairs. As spectators, however, we have the advantage of observing and learning from a safe distance.
What are some of these lessons, even when the financial lives of everyday people barely resemble those of the wealthy and famous? This article appearing in Forbes.com illustrates some examples of how different celebrities’ estates affected their families and how some practical changes could have improved most of these situations.
Here are a few of the lessons taken from the article:
- After Patrick Swayze died, members of his family questioned the validity of his will. Some family members questioned whether the will had been forged during Patrick Swayze’s final stay in a nursing home. This type of probate challenge is called a will contest. Will contests can include signing under undue influence (force or threats), when the person lacked mental capacity , or fraud. The article points out the problem the Swayze family encountered during the will contest: challenging a will in probate court requires following the statute of limitations. The timing of the challenge is always dictated by state law and varies from state to state. Seeking an experienced Arizona probate litigation attorney allows a family’s interests to be protected within the applicable deadlines.
- The untimely passing of fashion designer L’Wren Scott, Mick Jagger’s girlfriend, left the famous lead singer bereaved to the point of postponing his multi-national touring shows. While the average person may be able to take time off from work to mourn the death of a loved one, the contractual obligations for unique performers like the Rolling Stones can be non-negotiable. Unfortunately for Mick Jagger, the insurance carriers that cover performance venues demanded performance on the broken contract. The lesson here is that insurance disputes can cost grieving families. Wise planning and having a strong legal strategy makes the best defense.
- Author Tom Clancy’s trust was drafted in such a way as to leave ambiguity regarding payment of estate taxes. The resulting lawsuit has embroiled family members against one another instead of allowing space and time to grieve and honor the late author’s memory. The lesson here is that any family with assets exceeding the state and federal estate tax exemption needs clearly drafted estate planning documents. In the event of a dispute, a trust litigation attorney can assist in clarifying ambiguities.
There are several other key lessons included in the article, so by all means, continue to read more of the article Forbes.com. For additional questions or concerns about Arizona probate litigation, Arizona trust litigation, or Arizona will contests, Berk Law Group, P.C. is here to help.
Trusts are often sold to seniors as a device allowing them to pass their property to their children and other loved ones with the least possible expense, time and hassle. That may be true where there are no complications and everyone in the family gets along.
Trusts, at least theoretically, reduce the expense, time and inconvenience of settling your affairs after you’ve passed away because they typically avoid probate.
“Probate” refers to the process to administer a deceased person’s property. Probate starts with (A) the acceptance of a will as the governing instrument for how the assets should be distributed or a declaration that the person died without a will (called an intestate estate); and (B) the appointment of a personal representative. There are very specific and sometimes complex rules that apply in probate cases, so many people want to avoid probate like a disease and take elaborate steps to keep their property out of court. [Read more…]
The survivors and veterans of World War II have been called the Greatest Generation for several decades now, a title earned by their enormous contributions during a period of global and cultural strife. The nation’s prosperity depends upon the sacrifices of the men and women in the U.S. military, but perhaps this generation’s hallmark has been the enthusiasm with which the group made sacrifices needed to win the war abroad.
How disheartening then to learn of situations where veterans of WWII have been taken advantage of by unscrupulous individuals, like this story out of Tucson involving fraud and deceit of a once-trusted friend. The story is not uncommon. An elderly man is approached with a sad story of hardship that just so happens to be fixable with the savings of the old man. He gives his money to her willingly, but she has made the whole story up. She uses the money to buy herself and her family vehicles, plastic surgery, and other non-essentials that the elderly man did not agree to buy. [Read more…]
Abuse of the most vulnerable of society is a concern for everyone. And when an elderly loved one is the victim, you may be left confused about the steps you should take to extract the elder from the abusive situation and make sure that he or she is left whole after the experience. Although elder law litigation may sound like an extreme measure, in some situations it is the correct response.
Elderly people of every gender, race and net worth experience abuse. Typically, the abuse is at the hands of someone the elder trusted most, so much of the abuse happens without detection. Family members and other caregivers can be the most frequent perpetrators of elder abuse. Elder abuse can take the form of physical abuse, financial abuse, neglect, abandonment, isolation or even abduction. Any time an elderly person suffers, whether physically or mentally, elder abuse is a real possibility. [Read more…]
The unfortunate truth is that the nursing facilities that are supposed to serve and protect some of the most vulnerable members of society are sometimes the perpetrators of that abuse. Sometimes profit motive drives the abuse: short staffing and resulting infrequent contact with residents can leave the elderly just as physically and psychologically damaged as perpetrators who intentionally harm them. Intentional physical abuse is seldom merely the result of a single bad actor abusing a resident; systemic problems at a home may contribute to the abuse and neglect suffered by residents.
For a fascinating exhibit about the city of Teotihuacán, North America’s first urban civilization, visit Phoenix’s Deer Valley Rock Art Center. Predating the Aztecs, Teotihuacán was a city in central Mexico that featured apartment buildings, pyramids, beautiful murals. The city was constructed between 100 B.C. and 240 A.D.
The exhibit, titled “Teotihuacán & ASU: Archaeology in Action,” features authentic artifacts and replicas of implements used by the city’s inhabitants over 1900 years ago. It runs through January 31, 2015.
The Deer Valley Rock Art Center is run by the Arizona State University’s School of Human Evolution and Social change. It features the largest collection of “Native American petroglyphs in the Phoenix Valley, so there’s a lot of history to take in. In addition to the archaeology museum, the center also features a 47-acre Sonoran Desert preserve. [Read more…]