Tucson Estate Planning Attorneys providing legal services including Guardianship, Conservatorship, Wills, Trusts, Estate Planning and Probate Law
West, Longenbaugh and Zickerman is an Estate Planning Law firm in Tucson Arizona. Attorneys in our firm are here to help individuals and families throughout Tucson achieve their long-term financial and legal goals.
Our job is to work with you and advise you on your options for disposition of real and personal property after death and create the necessary legal documents including wills and trusts.
Nobody wants to think about what happens when they die. However, setting up your estate plan is one of the single most important things you can do to make sure your heirs are provided for in the best possible way. Estate planning is the process of arranging for the transfer of an estate in anticipation of death. Most adults need an estate plan, regardless of age, marital status, children or financial standing. An estate plan is necessary to name the beneficiaries who will receive your property after your death. The core documents most often associated with this process are wills and trusts. No matter what your net worth is it is important to have an estate plan in place.
Everyone should designate the person or persons who are to manage their financial affairs, care for them and make health care decisions in the event they become incapacitated. Building an estate plan is one of the best things you can do for the people you care about. Let our Arizona team of lawyers assist you in creating your estate plan.
It is a written document in which the person making the will:
A personal representative (person/entity) is appointed to administer the assets. Notices are sent to the heirs and beneficiaries of the deceased person, a notice is sent to and published to creditors, the assets subject to the probate are gathered, debts, taxes and expenses are paid and the remaining assets are distributed according to the will or to the heirs (if there is no will). Some assets may not be subject to probate if jointly owned with rights of survivorship or if there is a beneficiary named for the assets.
Community property ownership of an asset at the death of the first spouse does not avoid probate of the deceased spouse's one-half interest in the asset. However, if the document of ownership of the community asset also clearly states the ownership as "community property with rights of survivorship", the deceased spouse's one-half interest will pass to the surviving spouse without probate.
No. If the asset has a beneficiary designation, the will cannot change who will receive the asset. The designated beneficiary must either be changed or all beneficiary designations eliminated in order for the will to control distribution of the asset.
No. In all states there are statutes that direct how a deceased person's assets will be distributed if there is no valid will. The assets will be distributed to relatives of the deceased person (heirs) although the heirs who will receive the assets will differ from state to state. Also, assets with a named beneficiary or assets held jointly with rights of survivorship will pass to the named beneficiary or joint owner irrespective of whether there is a valid will.
Of course you can. However, there are strict requirements which must be followed in order for a document to be recognized and accepted as a valid will. There are also strict requirements for signing, obtaining witness signatures, etc. for a will to be valid. Therefore, it is advisable to use an attorney to be certain the necessary requirements are met. If a document does not meet these requirements, it will not be accepted as a will and the directions will not be followed!
Yes, but to avoid probate legal title to assets must be transferred from the individual to the trust. Creating the trust does not, by itself, avoid probate if legal title is not transferred. Referring in the trust document to the assets that are intended to be owned by the trust without transfer of legal title will not avoid probate. There must be a legally enforceable document transferring ownership of the asset(s) to the trust!
Retirement accounts must be owned individually and ownership cannot be transferred to your trust. The beneficiary of retirement accounts can be your trust but doing so can have significant adverse tax consequences so it is ill advised to name your trust as beneficiary without seeking competent legal/tax advice before doing so. The better alternative is to name an individual or individuals as beneficiaries unless there are compelling reasons to do otherwise.
The general answer to this question is, yes. However, there may be better alternatives than making the trust the beneficiary. Individual beneficiaries are generally the better alternative. If the person who will benefit from the annuity at the death of the owner, is the surviving spouse, in most instances it is better to name the spouse than to name the trust even though the spouse is the beneficiary of the trust.
You can be the initial trustee of your trust serving as trustee until you are no longer able to do so because of your death, disability or diminished mental capacity. Who do you name to take your place as trustee at that point in the future? You can name another individual or individuals or name a bank or trust company. In determining who should be named consider carefully and thoroughly the following points, at a minimum: (1) is there a person or persons who are capable of administering the trust assets (have the expertise to handle); (2) is the person's integrity and trustworthiness of the highest level; (3) will the person or persons named have a conflict of interest because the named person(s) are also beneficiaries of the trust; (4) is the administration of the trust going to be complicated and involve accounting/tax/legal questions beyond the person's level of expertise; (5) is there a potential for dispute or disagreement between the person named and the beneficiaries. Consider completely the answers to these and other questions to determine whether an individual or individuals are appropriate. If not, a bank or trust company should be named.
It is a legal process (through the court system) in which a deceased person's assets are administered, expenses, debts and taxes paid and the remaining assets distributed to the deceased person's beneficiaries (if there is a will) or to the deceased person's heirs as determined by state law if the deceased person does not leave a valid will.
No. Many assets are not subject to probate. An asset may have a beneficiary named (such as a bank or stock account) who will receive ownership upon the owner's death. An asset may be titled jointly with rights of survivorship so ownership passes to the surviving joint owner upon death of the other joint owner. Life insurance, annuity contracts, IRA, 401(k), 403(b) accounts most commonly have beneficiaries named although if there is no named beneficiary, such assets will be subject to probate, unless the applicable documents have default provisions directing who is to receive the asset if there is no named beneficiary.
Ownership of an asset by two (or more) persons (jointly owned) does not necessarily avoid probate with certain exceptions. Ownership jointly of a bank or credit union account in Arizona does avoid probate on the death of one joint owner unless the account ownership documents clearly designate otherwise. A.R.S. 14-6212. Also, if an asset jointly owned includes the words "with rights of survivorship", the asset will pass to the surviving joint owner(s) without probate at the death of a joint owner.
A beneficiary deed is one in which the document directs who is to become the owner of the real estate upon death of the owner. There are statutory requirements for such a deed to be legally valid. The designated beneficiary acquires no ownership rights in the real estate until death of the owner. The owner can change the beneficiary at any time without consent or knowledge of the present named beneficiary. Yes, a beneficiary deed, properly drawn and recorded will avoid probate.
The heirs (persons receiving assets of deceased person dying without a will) vary from state to state. Generally, the spouse and/or children of the deceased person are the most common heirs. More distant relatives will be the heirs if there is no surviving spouse or children. State laws must be reviewed to determine the actual heirs. The assets do not escheat (pass) to the state unless there are NO heirs. Also assets with a named beneficiary or assets held jointly with rights of survivorship will pass to the named beneficiary or joint owner even though there is no will.
In Arizona, a handwritten will is valid if the document is in the decedent's handwriting, clearly states it is a will or intended to be a will and the document is signed by the decedent. However, numerous difficulties can arise with a handwritten will including: (1) whether the handwriting is the decedent's handwriting; (2) whether the directions are clear and unambiguous; (3) whether the document disposes of all the decedent's assets; (4) what is to happen if a named beneficiary predeceases the decedent, to name a few. It is strongly recommended a will be prepared by an attorney familiar with the requirements of a valid will rather than relying on a handwritten will.
The answer to this question is "it depends". There are different types of annuity contracts. The transfer of ownership of an annuity contract to your trust could constitute a "taxable transaction" causing all increase in value of the annuity being subject to income tax at the time of the transfer. There could also be other adverse consequences to transferring ownership to your trust, Therefore, it is inadvisable to transfer ownership of any annuity contract to your trust without consulting with a competent attorney or accountant about the potential consequences of such a transfer. It will also be necessary to communicate with the company issuing the contract to determine whether a transfer will trigger any adverse consequences.
Assets titled in the name of your trust are not considered as owned by you even though you may be the trustee and have the unrestricted right to withdraw the assets from the trust. At death, the trust can continue beyond your lifetime so the assets can be either continued in trust for the beneficiaries or distributed outright to the beneficiaries. The successor trustee will have this power without probate.
Yes, you can create either by will or trust a "special needs trust" for the child. There are very specific requirements which must be met to preserve the child's right to receive public benefits. The document creating such a trust should always be prepared by a qualified attorney. Failure to meet the specific requirements will cause the child to lose the ability to receive the public benefits.
Yes, you can but such an approach is fraught with potential problems. A trust document is a complicated document and one which is carelessly drafted can create many problems and could be declared unenforceable. A competent attorney is always the best alternative.