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Top Ten Elder Law Lessons from 2022

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At the end of each month, we take stock of elder law news and developments and share them. For the December review, we look less to outside news and commentary and instead think about what we (or others) have learned or wish we (or others) had learned before something unfortunate happened. Here are some lessons from the past year, inspired by our own practice, cases we’ve read about, and rumors we’ve heard. Here are the top ten, in no particular order:

2022’s Top Ten

1. Be Wary of Cutting Corners, Part 1.  We’ve seen a number of self-drafted estate plans, many created out of necessity during the COVID-19 pandemic. We expect to see more as time goes on as those documents need updating or the creators die. Many have serious problems. And some are OK but could be better. Few do everything we, as estate planning attorneys, would recommend. The problem is, self-drafters don’t know what they don’t know. After they’re gone, those documents must speak for themselves. At that point, problems can be difficult and sometimes impossible, to fix. Fixes often require court proceedings that easily cost more than traditional estate planning (with an attorney) would have.

2. Be Wary of Cutting Corners, Part 2.  In Arizona, we have something called “Legal Document Preparers.” These are people certified by the State of Arizona to prepare legal documents. . They supposedly provide documents at lower rate than attorneys (though in our experience, not by much). While there may be a place for such a service, it’s not without risk, particularly in estate planning. As the legal document preparer website states: “Legal document preparers may provide general legal information but may not give legal advice.” If you know what you need, they can spit out a document for you. But they can’t tell you if you are going astray—even if they know it. That’s giving legal advice, and for that, you’ll need an attorney.

About Your ‘Stuff’

3. Your “Stuff,” Part 1.  If you have a Will, get it out and read it. It’s likely that it has a provision that says you can make gifts by creating a document separate from the will. We refer to this as “making gifts by a list.” It’s specifically sanctioned by A.R.S. § 14-2513. On the list, you can describe the items and identify the people those items should go to. It needs to be in your own handwriting and/or signed by you. This type of provision is very common. It’s also commonly misunderstood. As the statute says, lists are for “items of tangible personal property other than money.” That’s your “stuff” – collectibles, jewelry, furniture, your prized cookie jar, etc. NOT money.

Unfortunately, we see lists that include cash gifts. That leaves the estate administrator in a difficult position. He or she can’t legally honor the gift without doing more work, which likely would include a court proceeding. Such efforts easily cost more from the estate than it would have to have simply updated the will.

And More Stuff

4. Your “Stuff,” Part 2.  Anyone who administers estates or represents those who do will tell you that managing tangible personal property is one of the most frustrating aspects of estate administration. Why? The cost to sort it out can easily far exceed the value. As fiduciaries, we must be mindful of expenses. Spending more than something is worth to distribute it is frustrating. With that in mind, look at the provision in your will and/or trust concerning tangible personal property. Think about how that plays out and what it might cost. Consider a revision to provide specific instructions. Be clear about who gets what (and you can use the lists!) and then what happens with what’s left. (Consider: donation or the dump. Anything but letting the beneficiaries fight over it!)

Spending a lot of time and attention on items of little value may seem a little pointless, but that’s exactly why it’s important. If you spend time now, your estate may save a lot later.

Your Digital Life

5. Daunting Digital Developments, Part 1.  More and more of our lives are taking place in the digital realm, and that can create challenges for estate administrators. On many levels. Start with the basics: What assets are there and how can they be accessed? Consider: how will your executor know about an account if statements are delivered to an email address that cannot be accessed? Think about creating a comprehensive inventory.

6. Daunting Digital Developments, Part 2.  If you have cryptocurrency, NFTs or other blockchain assets, do some additional planning. Find out what happens to them when you die. (That information is probably buried in the terms of service agreement). Make a plan to communicate the details to your executor without compromising current security. It’s a challenge.

4 of the Top Ten: Spouse Issues

7. Single Again, Part 1.  In Arizona, divorce is supposed to automatically sever your former spouse’s interest in assets other than those governed by ERISA, which falls under federal law. (ERISA generally governs workplaces. So Arizona law would not, for instance, affect your 401(k).) Do not rely on state law to do that work for you. Convincing the financial institution holding the asset that state law governs can be a time-consuming hassle. Change the ownership yourself so there are no issues. Keep a copy of forms you submitted to change the beneficiary.

8. Single Again, Part 2.  Widows or widowers also have some work to do. Consider outsourcing. Grieving takes time, and a surviving spouse should take all the time he or she needs to adjust. Estate administration, however, shouldn’t wait very long. This is one of the most important times to get professional advice. This is particularly important if you have a trust that talks about splitting assets at the first death. Enlist your estate planning attorney to review the document and, at minimum, provide an explanation.

More Marriages: Planning Challenges

9. Starting Over, Part 1.  Say you have a trust and you’ve decided you don’t want one anymore. Or your life has changed (maybe you now have a new spouse) and want to start over with a fresh trust. Be careful! Consider what happens if assets are left under the old trust’s name. If the prior trust is revoked or is not addressed under the new plan, it will take some (perhaps expensive) effort to untangle your estate. Keep a paper trail of what you have done: a copy of the estate planning documents as well as beneficiary designation forms you submitted to the custodian.

10. Starting Over, Part 2.  If you are creating a plan with your second (or third or fourth) spouse, be careful. A common plan allows a spouse to have access to assets for his or her lifetime, then those assets pass to the deceased spouse’s kids from a prior marriage. The difficult question becomes who controls those assets during the lifetime of the surviving spouse. Plans that expect the surviving spouse and his or her stepchild to work together are fraught with peril. Plans that put either the spouse or the stepchild in charge are not much better. Consider a neutral, professional fiduciary. They may charge a fee, but it may be worth it to keep the peace.

That’s the 2022 review. Cheers to 2023. Happy New Year! It’s going to be a great one.

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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.