Elder Law Issues

Springing vs. surviving durable financial powers of attorney: what’s the difference? Which is better?

A “springing” power of attorney becomes effective only when the signer becomes incapacitated — lawyers talk about it “springing” into existence. A “surviving” power is immediately effective, and survives even if the signer later becomes incapacitated. Which do you prefer?

Join us for our podcast discussion about the difference between springing vs. surviving powers of attorney. We aim to give you enough information so that you can decide which is for you. Spoiler alert: there’s not an answer that is always correct for everyone, and the answer may be different depending on where you live.

We’re lucky to count Prof. Gerry Beyer among our good friends. He’s the Governor Preston E. Smith Regents Professor of Law at Texas Tech University College of Law. You can imagine that his business cards must be larger than usual — and that’s before he even gets to his academic credentials, accolades and identifiers.

Prof. Beyer is nationally-recognized for his expertise in estate planning. He’s particularly known for his interest in, and work with, less common kinds of trusts.

One day last month (it seems like a lifetime ago) we invited him to our office to talk about some of those trusts. This week we’re sharing our conversation with him about pet trusts.

We’ve written about pet trusts, and other ways of taking care of your pets, before. But we’ve never had the opportunity to talk about them with such a recognized expert.

Maybe you already know a thing or two about the late Trouble, or the Aristocats, or even Rhubarb. Probably you think the idea is too complex for your own pets. But maybe you wonder about whether you should reconsider. Join us for an interesting discussion about the real-life use of pet trusts — and alternatives.

Everyone wants a “simple” estate plan. But many have complicated notions about distribution of assets. We want to help you simplify your estate plan.

We see many clients with fixed ideas about which assets should go to which beneficiaries. Do you have four children? Well, couldn’t you just open four accounts at different financial institutions and leave one to each child?

Or perhaps you think one child might want to live in your home. Can you just adjust the amount in each of those financial accounts, and then leave the home and a smaller account to that child? Do you really know what your children will do with your home?

Ah, but your Individual Retirement Account (IRA) has a different value to each beneficiary. Most of the beneficiaries will get less out of an IRA because of the income tax liability attached to it. You might want to take advantage of that disparity, leaving taxable income to the beneficiaries who have the least tax to pay. Plus your estate plan can actually get disrupted by changes in law or circumstance.

Oh, and wait. What if you need money to provide for extra health care at life’s end. Which account(s) will that money come from? And what if the person in charge of making decisions effectively adjusts your plans by choosing which accounts to diminish or enhance?

Join us for our podcast discussion about how to really simplify your estate plan. Spoiler alert: we’re going to ask you to step back from your preconceptions about which asset should go to which beneficiary, and focus instead on larger goals. Do you want rough — or even precise — parity among your beneficiaries? Let us help you get to your actual goal, rather than the complex structure you might have constructed in advance.

Arizona is one of the forward-thinking states authorizing some sort of electronic signing of wills. So what is the status of electronic wills in the era of coronavirus concerns?

Turns out it’s not yet ready for the real world. Arizona (and most of the other states at the forefront) still requires witnesses to be physically present with the signer. That defeats the central value of allowing a signer to remain completely isolated.

And it’s worse than that. If you’re thinking that family members or the people you name in your documents could be your witnesses — in order to minimize contact with outsiders — that’s a problem under Arizona law. Each document has different requirements, but you can create problems by having family and friends as the witnesses to your estate planning documents.

Join us for this podcast episode, in which we talk with Prof. Gerry Beyer from Texas Tech College of Law. Prof. Beyer is a noted national authority on electronic wills, and he explains some of the limitations to the use of electronic wills in the era of coronavirus and the COVID-19 pandemic.

Like you, we are trying to stay ahead of the developing pandemic. As we explain in this COVID-19 update, we want to continue to provide services to our clients, trust beneficiaries and wards. Some of those services are essential; all of them are important.

At the same time, we do not want to put anyone (in our office, in our client base or in the wider community) at risk. We are adapting as knowledge and rules change.

As we have described before, the process in our office is evolving. We do not doubt that there will be more changes — and possibly big ones — in the unpredictable future. But for now, join us for our podcast episode discussing the COVID-19 update for our office.

When should your trust include spendthrift trust provisions? Are they only for spendthrifts, or only for “special needs” beneficiaries?

In this podcast episode, Tucson elder law attorneys Robert B. Fleming and Elizabeth Noble Rollings Friman discuss limitations on trust distributions. Bottom line: spendthrift trust provisions are useful for all sorts of trust beneficiaries. They are essential for some kinds of beneficiaries.

Public and private offices all across the country are responding to the COVID-19 pandemic. Law offices are no different. But at Fleming & Curti, PLC, we are a little bit different. We have some additional considerations to cope with in deciding how to respond.

Our weekly newsletters have addressed what we think clients ought to do, and what we intend to do, about the pandemic. In this special podcast episode, we talk about what we are doing, and how that might change.

Our main message: we’re watching this closely, and our response is likely to change over time. We will respond appropriately, but we don’t think that should include panic. We also don’t think you should panic — though you do need to be concerned, as well. We hope the whole community gets through this COVID-19 pandemic with minimal damage, and we plan to do our part.

One of the most challenging jobs for a successor trustee or personal representative of an estate: dividing personal property among the beneficiaries or heirs. If you’re in charge of administering an estate, how do you decide which of your siblings gets the silver, who gets the antique furniture, and how you’re going to handle thousands of family photos?

In an earlier podcast episode, we talked about what to do with your parent’s house. The same principles apply to personal property — except that it is usually more numerous, has lower values and carries a lot of emotional interest along with the financial value.

As with everything, your duty when dividing the personal property is to be fair — and to consider the costs. Do you need to get appraisals for all the personal property? (Probably not, but sometimes it makes sense or might even be required.) Should you have a family “auction”, with everyone bidding against their inheritance? Maybe, but it might not be the most efficient approach.

Efficiency is not an absolute requirement, but it is an important guideline. If it were all about efficiency, it would be easy: sell everything and divide the proceeds. That’s seldom the most popular choice among the heirs and beneficiaries.

In this podcast episode, we discuss dividing personal property from the perspective of the trustee or personal representative. As always, talk with your lawyer about this and other estate administration problems. In the meantime, we give you some ideas to consider in that meeting.

Suppose you have been named as trustee of your parents’ trust, or as personal representative (executor) of your last surviving parent’s estate. You wonder: What do I do with my parent’s house? Do you sell it immediately, as is? Or can you sell it to one of your siblings? Can you buy it from the trust or estate?

One pervasive problem: how much work needs to be done on my parent’s house before it can be sold? Should you get it completely cleaned, paint most of the rooms, replace the carpet? How about updating their 50’s kitchen?

Dealing with your parent’s house is one of the most difficult problems for most children who become trustee or personal representative. In this week’s podcast episode, we have some thoughts about how much work you should do to prepare the house. Spoiler alert: not much.

At the bottom of each of our newsletter and podcast entries online, we ask a survey question. The current one asks what happens if an Arizona resident dies without a will. We offer five options; we were surprised that less than 1/3 of our readers got the answer right.

Our survey says … that there’s lots of confusion about the rules of intestate succession. The most commonly chosen (and wrong) answer indicates that lots of our readers are confused about whether a will can help you avoid probate (spoiler alert: no).