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Loved One Ailing? Take Action Before It’s Too Late

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If the end may be near, take action before it's too late

People close to a loved one facing death often look for help from an attorney after the loved one dies. Many estate planning attorneys provide checklists and write about what to do in such a time of overwhelming emotion and numbing grief. Contacting an attorney is low on the list. Many do not realize that action can be taken before it’s too late.

There can be a benefit to contacting an attorney before a loved one dies. Often there is at least some time to get a person’s affairs in order, particularly if the person is still able to make changes. If a valid durable financial power of attorney or trust is already in place, much can be done by the agent or trustee named. And those named can start to learn about the duties and responsibilities to come. Here are a few areas in which to take action before it’s too late:

The Estate Plan

Locate the estate plan. Make sure the location of the original Will is known. Check that it is where it’s supposed to be. If there isn’t one, does the ailing person have sufficient capacity to make one?

Read the estate plan. Are people named living and available? Is there anything blatantly wrong or out of date?

Do those named under the documents need a better understanding of their responsibilities and limits of authority?

Is there a Living Will? The health-care agent or closest relatives should go over it. If the ailing person is able, he or she should explain his or her wishes.

Other Plans

Is there a burial plan or expression for cremation? If not, talk about it now. If so, make sure the documentation can be located.

What about pets? Is there a plan in place? Are there friends/neighbors known to ailing person who can help/take them in?

Are there lists for giving personal property? Can you read them? Identify the objects?

Does ailing person want to make gifts of property or money while still living?

Respect Legal Boundaries

Do not overstep authority. Do not give away, donate, or take property or money unless you know you have the legal authority to do so. If the ailing person has the ability to understand what he or she is doing, he or she can make decisions before it’s too late to do so; however, if capacity could be questioned, take steps to minimize possible disputes.

If the plan centers on a revocable trust, consider whether the ailing person is capable of serving. If the ailing loved one is no longer serving, the trustee should be sure he or she understands how their duties change upon the death of the trustor.

Asset Issues

Assess total assets. Locate financial papers, bank statements, insurance policies, brokerage statements, year’s tax statements, and credit card statements. If there’s a trust, are assets titled in the trust? Are bank statements or other important things delivered digitally? What are usernames/passwords?

Other unknowns? Storage Units? Safety deposit boxes? Where are the keys?

Add up the assets, how they are titled, and whether they pass to beneficiaries. Totals will determine, among other things:

  1. Whether a probate a probate court proceeding may be necessary. Maybe it can be avoided.
  2. If estate tax may be due. If the total estate exceeds the estate tax exemption (currently $11.58 million), are there ways to eliminate or reduce the tax, such as making gifts?

Consider income tax. If there is an irrevocable trust, such as a “B” trust, “Credit Shelter Trust,” or “Decedent’s Trust,” explore whether changes can or should be made. (No trust is completely irrevocable.) One reason to do so: If beneficiaries would face income taxes on trust assets when sold. Steps may be taken to achieve a “stepped up basis” for the beneficiaries.

Each Case Is Different

Of course, each person’s circumstance is different. Whether loved ones can make changes depends on many factors, including the condition of the ailing person, the terms of existing documents, and the time available. An estate planning attorney can help explain and explore whether changes should or can be made. In many cases, it is possible to take action before it’s too late.

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Robert B. Fleming


Robert Fleming is a Fellow of both the American College of Trust and Estate Counsel and the National Academy of Elder Law Attorneys. He has been certified as a Specialist in Estate and Trust Law by the State Bar of Arizona‘s Board of Legal Specialization, and he is also a Certified Elder Law Attorney by the National Elder Law Foundation. Robert has a long history of involvement in local, state and national organizations. He is most proud of his instrumental involvement in the Special Needs Alliance, the premier national organization for lawyers dealing with special needs trusts and planning.

Robert has two adult children, two young grandchildren and a wife of over fifty years. He is devoted to all of them. He is also very fond of Rosalind Franklin (his office companion corgi), and his homebound cat Muninn. He just likes people, their pets and their stories.

Elizabeth N.R. Friman


Elizabeth Noble Rollings Friman is a principal and licensed fiduciary at Fleming & Curti, PLC. Elizabeth enjoys estate planning and helping families navigate trust and probate administrations. She is passionate about the fiduciary work that she performs as a trustee, personal representative, guardian, and conservator. Elizabeth works with CPAs, financial professionals, case managers, and medical providers to tailor solutions to complex family challenges. Elizabeth is often called upon to serve as a neutral party so that families can avoid protracted legal conflict. Elizabeth relies on the expertise of her team at Fleming & Curti, and as the Firm approaches its third decade, she is proud of the culture of care and consideration that the Firm embodies. Finding workable solutions to sensitive and complex family challenges is something that Elizabeth and the Fleming & Curti team do well.

Amy F. Matheson


Amy Farrell Matheson has worked as an attorney at Fleming & Curti since 2006. A member of the Southern Arizona Estate Planning Council, she is primarily responsible for estate planning and probate matters.

Amy graduated from Wellesley College with a double major in political science and English. She is an honors graduate of Suffolk University Law School and has been admitted to practice in Arizona, Massachusetts, New York, and the District of Columbia.

Prior to joining Fleming & Curti, Amy worked for American Public Television in Boston, and with the international trade group at White & Case, LLP, in Washington, D.C.

Amy’s husband, Tom, is an astronomer at NOIRLab and the Head of Time Domain Services, whose main project is ANTARES. Sadly, this does not involve actual time travel. Amy’s twin daughters are high school students; Finn, her Irish Red and White Setter, remains a puppy at heart.

Famous people's wills

Matthew M. Mansour


Matthew is a law clerk who recently earned his law degree from the University of Arizona James E. Rogers College of Law. His undergraduate degree is in psychology from the University of California, Santa Barbara. Matthew has had a passion for advocacy in the Tucson community since his time as a law student representative in the Workers’ Rights Clinic. He also has worked in both the Pima County Attorney’s Office and the Pima County Public Defender’s Office. He enjoys playing basketball, caring for his cat, and listening to audiobooks narrated by the authors.