Protecting our Children With Guardianships and Conservatorships

By Harry J. Lenaburg, Esq.

As young parents we were often so busy just taking care of business, working, raising our children, buying a house, that we neglected some very important personal matters.  You know, we would purchase life insurance to protect our families if something happened to us, but neglect that very important issue of who would care for our minor children in the event of the death or incapacity of both parents.

This is a serious discussion for a couple to have, determining who they trust to care for both the physical needs (Guardian) and financial needs (Conservator) of their children.   If you do not nominate the person or persons whom you wish the court to appoint as Guardian or Conservator, then it is possible that the family member whom you would least prefer to care for your children is the person appointed. 

Other obvious considerations include the ability of your chosen Guardian to actually care for the child or children.  By this I mean do they have housing adequate to the task?  Are they willing to take on the responsibility?  Will they allow other members of the family to get to know your children after you are gone?  Many people are in the circumstance where the person or couple who can best care for the child or children may not be very good at handling finances.  There is certainly no problem with appointing different people to be Guardian and Conservator.

Another tip is to designate not only the first choice as Guardian and the first choice as Conservator, but to also have an alternate designated for each, in the event that your primary choices become unable to act in the capacity nominated.  We all want to do what’s best for our children, especially when they are very young.  A will designating your choices for Guardian and Conservator is an important tool in that task.

The Law Firm of Jessica M. Cotter, P.L.L.C.

18301 North 79^th Avenue, Suite F-168

Glendale, Arizona 85308

602-843-3004

Jmcotterlaw.com

Jessica.Cotter@azbar.org

What is a Real-Estate Special Commissioner and when do you need one in a Family Law case?

By Jessica M. Cotter, Esq.

A Real-Estate Special Commissioner is a licensed real estate agent or broker that is appointed by the court to place a house on the market and sell the property.  This appointment is made pursuant to rule 95G of the Arizona Rules of Family Law Procedure.  To be considered for appointment the agent or broker must be licensed in Arizona for three years and complete an online orientation.  In addition they must have errors and omissions insurance and will be evaluated by the court on how they handle the matter.  The Real-Estate Special Commissioner is paid by commission from the sale of the property that they are appointed to sell.

A Real-Estate Special Commissioner is needed when there is a house to be sold and neither party in a Dissolution matter know a real-estate agent to sell the martial residence or the parties cannot agree on a real-estate agent because they do not trust one another, or one is related to the proposed agent.  Another basis for the appointment of a Real-Estate Special Commissioner is when one of the parties remains in the martial residence and is interfering with the sale of the house by not allowing prospective buyers to view the house or not keeping the house presentable for sale resulting in a major delay in the sale of the property.   Pursuant to rule 95G the Real-Estate Special Commissioner may file directly with the court to resolve these types of issues without the necessity of attempting to resolve the issues through attorneys for the parties.

Please consult your local family law attorney if you feel that you have a need for the appointment of a Real Estate Special Commissioner. 

The Law Firm of Jessica M. Cotter, Esq.

18301 North 79^th Ave.

Suite F-168

Glendale, AZ 85308

Jmcotterlaw@gmail.com

Jessicacotterlaw.com

Living Trusts and Avoiding Probate

 By Harry J. Lenaburg, Esq.

    Many people establish a Revocable Living Trust as a means of avoiding the necessity of the filing of an action in the Probate court by their heirs to distribute their assets.  Such a Trust is, as a general rule, one method for avoiding the filing of a probate to settle the estate.

     For this to be a successful strategy, however, the Settlor (the person or persons establishing the Trust) must be sure to transfer any real property and assets to the Trust.  This requires a deed transferring any real property, which must be properly recorded in the appropriate county, which is the county where the property is.

     If the real property is not properly transferred by a recorded deed then the property is not an asset of the Trust, and a probate will, in most cases, be required.  Another issue which can arise is due to bank accounts and accounts in other financial institutions that are not established in the name of the Trust.  Depending on the dollar amount of the account failure to include these accounts may result in the necessity of a probate.  Many financial accounts provide for the designation of a beneficiary who is to receive the account upon the death of the owner or owners of the account.

     As a caution, especially in these times of refinancing mortgages, some lenders require that a property in a Trust must be transferred out of the Trust in order to complete the refinance.  When the refinance is complete it is essential that the property be once again transferred to the Trust, otherwise it will not be treated as an asset in the Trust, regardless of the fact that it was once in the Trust.

     Handled correctly a Revocable Living Trust can help you to avoid the cost, and inconvenience to your heirs of a probate action.

The Law Firm of Jessica M. Cotter, P.L.L.C.

18301 North 79^th Avenue, Suite F-168

Glendale, Arizona 85308

602-843-3004

Jmcotterlaw.com

Jessica.Cotter@azbar.org

What happens when a party does not fully disclose all debts and assets prior to the entry of the dissolution decree?

By Jessica M. Cotter, Esq.

On occasion there may be assets or debts that were not included in the Decree of Dissolution of Marriage. Pursuant to 25-318(b) the property or debt is treated as what is termed tenants in common with each party owning one- half of the property and being responsible for one-half of the debt.

Before you file with the court if such an error occurred you must first look at the terms of the Decree of Dissolution of Marriage.  There may be language in the decree that prevents you from bringing the action or language that protects you from the debt.

If the parties discover the issue and attempt to remedy it out of court make sure that any agreement is done in writing, signed by both parties, before a notary. If it is not once the property is transferred out of the parties name the family court cannot address the issue. Then it is in the hands of the civil court and they will also require something in writing.

 If you do find that an asset or debt was left out of the Decree of Dissolution I highly recommend talking with an experienced attorney in your area because it is a complicated issue to handle without assistance.   It is an area of family law that is very fact specific and must be handled the correctly, otherwise you could lose the property or be responsible for a debt you did not know existed.

The Law Firm of Jessica M. Cotter, P.L.L.C.

18301 North 79^th Avenue, Suite F-186

Glendale, Arizona, 85308

602-843-3004

Jmcotterlaw.com

Jessica.Cotter@azbar.org