Will Contest Fails, But Paternity Remains an Issue
Based on popular cultural references (and especially novels, television and movies), it might seem like will contests are commonplace. In fact, very few wills are contested. When a will contest is filed, it is seldom successful.The risk that someone might contest your will is very slight — but it does happen. The background story in […]
Ambiguous Residuary Clause in Will Causes Difficulty
Your will should accomplish at least three simple things. It should identify who will manage the estate (the “personal representative”, in Arizona). The will should identify individual items, dollar amounts or percentages that are to go to particular recipients. Finally, the will should include a “residuary clause” — a statement about who will receive the […]
Personal Liability for Acting as Personal Representative
When you agree to act as personal representative of a decedent’s estate, do you take on any potential personal liability? Generally not, but you should make sure everyone knows that you are acting as a fiduciary. A recent Arizona case illustrates the risk if you do not. Estate’s property is sold When Gary Barnes (not […]
Guardianship, Conservatorship and Jury Trials in Arizona
VOLUME 24 NUMBER 16 Suppose someone has asked the Arizona courts for appointment as your guardian and/or your conservator. A trial has been set to consider the petition. Do you think you should be entitled to a jury trial before a guardian or conservator is appointed? Under Arizona law, you are entitled to a jury […]
Surcharge Against Trustee for Benefiting Self
VOLUME 24 NUMBER 13 We see problems of trustees misbehaving all too often. Frequently those misbehaviors start from small decisions and are magnified over time. A trustee can be “surcharged” for actions benefiting the trustee at the expense of the trust. That can mean penalties as serious as forfeiture of all rights to receive benefits […]
Unwritten Promise to Write a Will is Not Enough
FEBRUARY 20, 2017 VOLUME 24 NUMBER 8 Here’s a basic rule, applicable in every U.S. state: wills need to be in writing. But what about a promise to write a will, or to leave a particular item to a particular person? Unsurprisingly, those promises usually have to be in writing, too. Jim’s Story Take Jim […]
Privacy Concerns Loom Large in Probate Court
JANUARY 16, 2017 VOLUME 24 NUMBER 3 Things change. This is our twenty-fourth year of publishing Elder Law Issues, and one thing we frankly didn’t think much about a quarter-century ago was privacy. Today it’s a big concern, and central to a lot of our thinking. When Fleming & Curti, PLC, first formed in 1994, […]
Common-Law Marriage, Divorce and Probate, All In One Case
DECEMBER 19, 2016 VOLUME 23 NUMBER 47 Here’s a question we hear frequently: how long does a couple have to live together in order to be considered married? The answer in Arizona: until the wedding ceremony. In other words, Arizona does not recognize “common-law” marriages. That strong, direct statement, however, masks a more complicated answer. […]
Failure of the Imagination in Seven-Decade-Old Trust
SEPTEMBER 6, 2016 VOLUME 23 NUMBER 33 Why involve an attorney in your estate planning? Partly because they know the rules — and not just the rules about how to prepare a valid and comprehensive document, but also the rules about taxes, trust limitations, and all of the related concerns you might not focus on […]
Court Invalidates Will and Trust Naming Lawyer as Beneficiary
JULY 11, 2016 VOLUME 23 NUMBER 26 One principle governing lawyers is obviously and intuitively correct: A lawyer may not prepare a will or trust (or, for that matter, any other document or arrangement) by which a client makes any substantial gift to the lawyer. Similarly, lawyers are precluded from preparing documents giving or leaving […]