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2016 Arizona Probate and Elder Law Legislation Updates

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AZ houseDuring the 2016 State of Arizona Fifty-second Legislature Second Regular Session, the House of Representatives has proposed three bills and the Senate has proposed one bill with proposed amendments to Arizona’s elder laws.  The proposed revisions involve powers of attorney, claims for financial exploitation under Arizona’s Adult Protective Services Act, A.R.S. 46-451 etc. and guardianships.

Powers of Attorney

A.R.S. § 14-5501 sets forth, among other things, the requirements to create a valid durable power of attorney in Arizona.  Basically, a “durable” power of attorney is one that either (a) stays in effect notwithstanding that the principal (the one granting the power) becomes incapacitated or disabled or (b) becomes effective when and if the principal becomes incapacitated or disabled.

Pursuant to A.R.S. § 14-5501(B), the intent to create a durable power of attorney may be expressed by the following or similar language in the power of attorney: [Read more…]

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Whitney Houston’s and Daughter’s Estates Embroiled in Disputes

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Whitney HoustonThe death of Whitney Houston was a devastating loss to the music and acting communities, and the world. The talented singer was found dead in February of 2012. Trouble regarding the singer’s estate began brewing almost immediately. Her ex-husband, Bobby Brown, and Houston’s family were not getting along. Brown left Houston’s funeral. Concerns circulated that Brown would use the couple’s daughter, Bobbi Kristina, in order to gain access to Houston’s estate. It is speculated that Whitney Houston’s estate is valued between $12 million and $20 million.

Unfortunately, Bobbi Kristina was struggling with her own battle with substance abuse at the time of her mother’s death. Family members worried that if Houston left her assets to Bobbi Kristina, Bobbi Kristina would not be responsible enough to handle it all, or that father Bobby Brown would attempt to gain conservatorship over Bobbi Kristina in an effort to get his hands on the money. In fact, according to James Alexander of the Express, shortly after Houston’s death, Bobby Brown did express interest in obtaining conservatorship of his daughter if she did not clean up and change her life.
[Read more…]

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Do It Yourselfers Beware! – Holographic Will Held Invalid

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When a loved one dies, it is a time of grieving, pain and sorrow.  The grief and sorrow can turn to frustration and even anger when the deceased’s wishes for his estate are not followed.  Sometimes the person’s wishes are not followed because the person did not have testamentary capacity (was of unsound mind) or was unduly influenced.  Other times, the person’s wishes are not followed because those wishes were not properly adopted in a legally enforceable will.  Irrespective of the reason for the question or dispute, it is often helpful to consult with an experienced Arizona probate attorney.

The question in Wagoner v. Aleman, decided by the Arizona Court of Appeals on May 19, 2015, was whether Jeanine Jones’ partially typed and partially hand-written will was valid and enforceable under Arizona probate law.

In that case, Elisa Aleman was Jones’ natural granddaughter.  Elisa’s natural mother died shortly after Elisa was born and Elisa was legally adopted six months later.  Despite the adoption, Jones reconnected with Elisa and they remained close until Jones died on August 31, 2012.

Before she died, Jones prepared what was labeled a “Last Will and Testament” on a computer.  The document provided that Elisa was to inherit 50% of the sale of Jones’ property in Lake Havasu City, Arizona.  Later, Elisa stated that she was present when Jones made handwritten changes to the Will.  The changes reduced Elisa’s share to 25%.  Jones initialed all of the changes, except one that remained basically unchanged from the original document.  Only Jones and a notary signed the document.

After Jones died, her sister opened probate, claiming that Jones died intestate (without a will).  Elisa then filed a petition seeking to admit the typed/handwritten will to probate, whereby she would inherit 25% of the sale proceeds of the Lake Havasu City, Arizona property.  Elisa claimed that the will was a valid holographic will and Jones’ sister objected.  Elisa also argued that even if the will was not valid and Jones died without a will that she was Jones’ heir under Arizona’s intestatcy laws, such that Elisa was entitled to Jones’ estate.

[Read more…]

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Beneficiaries Disinherited for Filing Trust Contest in Violation of Forfeiture Clause

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25095774_sBeneficiaries 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…]

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Probate and Trust Lessons from the Rich and Famous

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Celebrity Probate TrustThe 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:

  1. 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.
  1. 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.
  1. 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.

Photo Credit: ♥ Xanda ♥ via Compfight cc

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Lou Reed Leaves $30 million—and Only a Will

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Berk Law Group, P.C. Announcement

Lou ReedLou Reed, famous for 70’s hits like “Walk on the Wild Side,” died on October 27, 2013, leaving behind an estate worth at least $30 million that generated around $20 million in income since he died. Wealth like that is often secured by a complex estate plan, designed to reduce the possibility of disputes and avoid probate and litigation.

Many celebrities spark massive probate litigation after they pass away by either planning too little for someone of their wealth or cutting someone out of the plan who thought they should be included. These cases often end up in trust litigation, since the wealthy often use revocable living trusts and irrevocable trusts as their preferred planning devices.

The strange thing about Lou Reed’s estate plan is that it was solely comprised of a will. According to news reports, Mr. Reed didn’t have even a revocable living trust.

So what’s the result for Mr. Reed’s surviving family members and loved ones? First, the process in probate court (called Surrogacy Court in New York, where Mr. Reed’s estate is being administered) is entirely public. Reporters, jealous members of his extended family, and unscrupulous people all have access to the particulars of Mr. Reed’s estate. [Read more…]

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Mickey Rooney’s Family Accused of Elder Abuse, in Court Following Actor’s Death

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Mickey Rooney Estate Drama | Probate Litigation Attorney | Scottsdale, AZ | Berk & Moskowitz, PCTo a certain generation, Mickey Rooney evokes memories of Hollywood’s golden years, where going to the movies was a happy, music-filled, and glamorous experience. Classic film fans mourned the loss of an icon after hearing news of Rooney’s passing on April 6, 2014.

Quickly following on the heels of this tragic news, however, was word that Rooney’s extended family was openly feuding about everything from who would claim his body to who should lay claim to his somewhat meager estate. News of his final years also included stories of possible elder abuse by those same relatives.

The years before his death seem to have foreshadowed his final decline. Since 2011, he had fought legal and personal battles, struggling to maintain his dignity.  In that year, Rooney and his attorneys filed a financial elder abuse lawsuit against Chris Aber, his wife’s son from a previous marriage, and Aber’s wife. The lawsuit accused the Abers of robbing Rooney of millions of dollars and of elder abuse. [Read more…]

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Buyer, Beware! Online Last Will and Testament Ends in Probate Litigation

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Estate Dispute Over Online Will | Scottsdale, AZ Estate Dispute Attorney | Berk & Moskowitz, PC

Online legal forms allow consumers to form a business, create real estate contracts, and make a last will and testament—all from the comfort of their homes and without an attorney. This convenience—paired with the often reduced cost of purchasing do-it-yourself (DIY) forms—might explain the success of the online legal form industry.

Working with online forms, instead of consulting a qualified estate planning attorney, may save time and money in the short term; however, the validity, effect and interpretation of these documents may not be clear.  And defects may not be discovered until it is too late.

This warning isn’t just a self-preservation tactic on the part of attorneys, who might be out of a job if everyone used DIY legal forms.

The well-regarded consumer advocacy group Consumer Reports investigated whether online legal forms operate the way they are intended. Unfortunately, the investigation yielded words of caution to those choosing to take the legal DIY route. [Read more…]

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Non-probate Assets and Designated Beneficiaries

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Berk Law Group, P.C. Announcement

AStock certificate | Non-probate assets | Scottsdale, AZ | Berk & Moskowitz, PC recent unpublished probate case, In re Maynard, deals with the issue of failing to identify beneficiaries when using non-probate assets.

A non-probate asset is defined as a financial or legal instrument that designates a beneficiary as part of its legal function. By doing so, the instrument passes outside of probate. Some common examples of potential non-probate assets are:

  • Retirement accounts, such as IRA’s and 401K’s;
  • Insurance policies;
  • Beneficiary deeds for real property;
  • Real estate deeds that are held joint tenants with right of survivorship; and
  • Stock options.

[Read more…]

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Help for Arizona Personal Representatives

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Personal Representative | Probate attorneys | Scottsdale, Arizona | Berk & Moskowitz, PC |When a loved one names you as an executor or personal representative in their Last Will and Testament, and you are appointed as such by the court, you take on legal obligations and fiduciary duties.

In the role of personal representative, performing and providing an accounting of the estate’s total assets and liabilities is one of the most important set of tasks assigned. It requires patience, assertiveness, and the ability to organize the details of someone else’s life. It can be challenging enough without encountering resistance from someone refusing to cooperate with simply returning property or records that once belonged to the decedent.

Unfortunately, this is a common problem encountered by many people serving as personal representatives. On the other hand, Arizona law assists personal representatives in this type of situation. [Read more…]

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