Caution when amending Estate Planning Documents

Each estate planning document has statutory requirements as to whether one or two witnesses are needed or if a notarized signature is required. These requirements create authenticity and a comfort level so that they can be enforced and followed by courts, financial institutions and health care providers. If someone marks out provisions or writes on a document without following the statutory requirements, confusion results. If there is confusion, the likelihood is your desires will not be followed. Therefore, if you have a change to your documents, consult an attorney. Then, in addition to following the statutory requirements, you have an independent witness to your intent.

What happens when you don't have a Will? If you don't have a beneficiary on your assets, then they go to your heirs. Your heir is your spouse, unless you had kids from outside your marriage, the the kids get your community property interest and half your separate property. If you aren't married your heirs are your children; if no children, then your parents; no living parents then siblings; no living siblings then grandparents, then aunts and uncles, then cousins. Don't want those family members to have your assets? Then, have a Will.

Estate Tax Exclusion Increased in 2015

New to 2015 is that one person can pass an aggregate of $5.43 million estate tax free (last year it was $5.34 million). If you are a couple and have a trust that must split upon the death of one of you, your trust likely should be updated for an optional split. If your estate exceeds what you can pass estate tax free, an irrevocable life insurance trust or ILIT would be helpful.

New laws regarding marriage

Now that Arizona recognizes same-sex marriage it is a good idea to review your estate plan. Do you have a Domestic Partnership Agreement which should become a Pre-Marriage or Post-Marriage Agreement? Do you have joint property that now can be treated as community property? Does a family member have a partner who now legally can be recognized as an in-law? There can be different answers for different situations, so it is a good time to have your estate planning documents reviewed.

Having the right Successor Trustee

We can make things easier for our family when we are ill or upon our death, when we effectively use a Revocable Living Trusts are very useful for assuring access to assets due to illness or death. One way is to be sure that you have the right persons named as your Successor Trustee to take care of your assets when you cannot. If you have named a financial institution to be a Successor Trustee, make sure that your assets meet the financial minimum. If a bank will not serve as Successor Trustee because your assets are under the minimum, you want to be sure you have listed a trusted person or another financial institution. The Successor Trustee does not have to be a financial wizard, but just someone who is responsible and will hire the right professionals to assist you.

Get more than just paper when your estate plan is done.

Estate planning needs to be more than just a stack of paper. Legal services should be that-- service, including information, advice and a somewhere to call when you have questions how to use your documents. So I provide legal services, and most follow calls are answered without charge, unless new research or documents are needed.

LLC interests can be held as joint tenants with right of survivorship

If you have an LLC but do not have a trust a new law, A.R.S. 29-732.01, allows LLC interests to be held as joint tenants with right of survivorship or community property with right of survivorship. The Operating Agreement must provide for the right of survivorship. This new law avoids probate if you own interest in an LLC but do not have a trust. However, I still recommend a trust when you own an LLC because the trust will avoid court involvement if you become incapacitated and avoid probate upon the death of both you and your spouse or joint tenant.