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When Helping Yourself Doesn’t Help

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Will and estate planning - Berk Law Group, P.C.The Arizona probate process is strictly governed by laws enacted by the legislature and by rules adopted by the Arizona Supreme Court. Individuals are not prohibited from entering into this technical area, but there are many pitfalls out there.

The Arizona Court of Appeals recently decided a case that illuminates the perils of self-help. In the Matter of the Estate of Norma Jean McConnell, her son filed several documents with the court that he had created himself, demanding to be appointed as the personal representative to administer her estate under her last will and testament.

The Judge could have dismissed the proceeding because the son had not filed the will with the Court as required, had not been appointed as personal representative and he was incarcerated, so it was unlikely that he could fulfill the duties of personal representative. However, the Judge, in an attempt to be helpful, appointed the Maricopa County Public Fiduciary’s office to investigate and file a report.

Maricopa County maintains an office, the public fiduciary, whose job it is to look after the neediest of the population who have no one else to turn to. Where appropriate, the Court may appoint the public fiduciary to serve.

In the McConnell case, the public fiduciary’s investigation found that Norma owned no real estate in the County; her abandoned assets had been turned over to the Arizona Department of Revenue (unclaimed property), but it was valued less than $75,000; no other assets were located; and, the assets that were found could be claimed by a Small Estate Affidavit of Collection, without the need for a probate.  The court then denied son’s demand that he be appointed as Personal Representative.

He appealed the case.  The decision there upheld the lower court rulings. Without the will being filed, the son could not be appointed to administer the will. Further, his incarceration prevented him from performing the duties required by statute.

Although everyone has access to court-approved forms and instructions for filing a probate case by stopping by the closest court facility or going online for self-help forms, sometimes it is best to consult an experienced Arizona probate lawyer. Each document has certain statutory requirements. Various deadlines apply. Not every estate is subject to a probate proceeding. As in this case, in Arizona, where non-real estate assets total less than $75,000, and other requirements are satisfied, there is a quick and easy way, a small estate affidavit, to transfer the assets to the beneficiaries without the need to open probate or to have a personal representative appointed.

Estate administration and litigation is what we do at Berk Law Group. Sometimes the best help is not your “self” but someone who knows what to do. If you have any questions or need any assistance in a small or large estate, please don’t hesitate to contact us.

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Probate Challenges and Estate Litigation – Do Wills Always End Up in Court?

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Berk Law Group, P.C. Announcement

Mesa, AZ Probate Dispute | Probate Dispute Attorney | Berk & Moskowitz, PCFor anyone who has heard the estate planning maxim that failing to plan is planning to fail—and for some families the goal of estate planning is probate-avoidance—there still tends to be some confusion about probate litigation.

First, probate and estate litigation are not the same things as estate administration through probate. Probate “means proving (a Last Will and Testament’s) genuineness in probate court. Unless otherwise provided by statute, a will must be admitted to probate before a court will allow the distribution of a decedent’s property to the heirs according to its terms.”

A Last Will and Testament is supposed to reflect the complete and true wishes of someone in their sound mind who sets forth their wishes for property upon death.

When someone’s wishes are disputed, misunderstood, vague, or otherwise argued over, the probate court hears evidence of the person’s intent.

It is at the point where challenges and disagreements interfere with the court’s ability to administer the will that probate challenge and estate litigation occur. [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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CUT OUT OF A WILL OR TRUST?

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If you believe that you have been wrongfully cut out of a will or a trust, there are things you can do.  Here is a sample of some of the claims you can investigate and pursue:

  • Authenticity of the Will, Trust or amendment:  If the Will, Trust or amendment eliminating you was not actually signed by the person, you may be able to pursue a challenge. [Read more…]
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INCOMPLETE WILL IS VALID, ARIZONA COURT HOLDS

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An Arizona court holds that a will that refers to a list still valid, even if the list is actually not attached.  So we ask, is an incomplete last will and testament still valid under Arizona probate law?

In this video, Kent Berk, Scottsdale, Arizona probate and estate lawyer, answers these and other questions, and summarizes the Court’s findings in Re: Estate of Gloria Waterloo,  Zimmerman v. Allen. [Read more…]

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