The Importance of Having an Estate Plan.

By Harry J. Lenaburg, Esq.

     There are many different tools available to an individual or married couple to aid in establishing your estate plan.  Relatively simple tools, such as simple wills, powers of attorney, beneficiary deeds, and more complex tools such as the revocable living trust can be used to pass your estate on to the next generations.

     You can also plan how to pass your estate through instruments or accounts that provide for the designation of a beneficiary for the payment of the principal and any accrued interest, such as life insurance, annuities or other financial and retirement accounts.     

   

    In Arizona you have the ability to designate an account in a financial institution as a “Payable on death” or “POD” account.  In this way you can pass the account to whomever you might designate as the “POD”, but not have to put that name on the account, allowing the individual access to the funds therein.

     

     Do not leave your estate plan to chance.  Unfortunately a family death often causes problems between siblings and other family members.  Meeting with an experienced attorney to help you find the right tools for your particular assets can help things run more smoothly.  Here at the Law Firm of Jessica M. Cotter we have attorneys who can assist you with your questions, and help you determine the correct tools for your own personal circumstances.

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 Pre-Nuptial Agreement, What Makes it Enforceable and When is One Appropriate?

By Jessica M. Cotter, Esq.

According to Black’s Law Dictionary a Pre-Nuptial Agreement is an agreement made between two people that are planning to marry and which defines each parties rights when it comes to real property, bank accounts, investment accounts, retirement and pension accounts, and debts. It may also include terms relating to Spousal Maintenance (alimony) and payment for the children’s college education.

In the state of Arizona in order to have a valid Pre-Nuptial Agreement the following must be true:

• It must be in writing;
• It must be signed by both parties;
• It is effective once the parties are married;
• The agreement was entered into voluntarily;
• That there was full disclosure of any and all debts and assets; and
• If there is no disclosure of property that this was done voluntarily,
and with the knowledge of both parties.

The determination whether or not you need a Pre-Nuptial Agreement is a personal decision. Some of the factors to consider are:

• How many times has the person been married;
• Is there an significant age difference between the parties;
• Does one of the parties have a significant amount of debt ;
• Has either party filed bankruptcy more than one time in the past;
• Does one party have more assets than the other;
• If you own your own company; and
• Does either party have an issue with drugs or alcohol.

The above list is not exhaustive, and includes just some of the reasons you may decide to protect yourself with a Pre-Nuptial Agreement.  At our firm we assist people in the preparation and review of Pre-Nuptial Agreements, so meet with us or an experienced family law attorney in your area to seek legal advice about whether or not a pre-nuptial agreement may be in your best interest.

The Law Firm of Jessica M. Cotter, P.L.L.C.
602-843-3004
Jessicacotterlaw.com
Jessica.Cotter@azbar.org

Beneficiary Deeds as a Method to Avoid Probate in Arizona

By Harry J. Lenaburg, Esq.

Many clients come to consult with me for advice on various methods of avoiding the necessity of the filing of a probate of their estate by their heirs.  Some choose to establish a Revocable Living Trust, while others choose other methods.

One such tool to avoid probate in the context of real property is the execution and recording of a beneficiary deed.  Such a deed provides that upon the recording of the death certificate of the grantor, the real property will thenceforth be titled to the designated beneficiary or beneficiaries.

The recording of a beneficiary deed does not transfer any right in the property to the designated beneficiary during the life of the grantor.  In other words, the grantor remains free to sell or otherwise transfer the property.  One drawback to simply titling the property as a joint tenant with a child is that that child has the right to transfer his or her interest in the property without your consent.  Also a judgment lien recorded against that joint tenant attaches to the property, and should you decide to sell the property such a judgment lien would have to be satisfied from the proceeds of the sale.

A beneficiary deed is the perfect solution to this dilemma. Please contact our office or an law office in your area to have one prepared. 

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 Parenting Coordinator and when should one be appointed?

     A Parenting Coordinator is a person that is appointed by the judge in family law matters with children to assist Parents when they are unable to agree on day to day decisions. These decisions included but are not limited to:

     •      Where the child or children will attend school;
     •       What after school activities the children will participate in;
     •       Disciplining the children;
     •       Exchanging the children for parenting time;
     •       Making medical decisions regarding the children.

     The Parenting Coordinator can help the parties reach agreements on the above issues and if agreement is not reached a report is prepared by the parenting Coordinator with recommendations for the courts review.  The court will either agree with the recommendations or schedule a hearing to address the issues. The Parents may file an objection to the recommendations after the court has made its decisions.  If it is a time sensitive issue the Parenting Coordinator can make a temporary binding decision, especially if there is a safety issue. The Parenting Coordinator may also obtain information from any person who has information that will assist the Parenting Coordinator in making a decision.

     Parents can request that a Parenting Coordinator be appointed to their case from the mental health roster if they foresee that disagreements may arise between themselves. The court may also appoint a Parenting Coordinator when the Judge observes the following situations:
    •    The parents consistently disagree and file multiple petitions regarding parenting time and legal decision (custody) issues;
    •     There has been or is drug abuse by one or both parents;
    •     Either of the parents has a mental health issue;
    •     If the child has special needs.

     When deciding if you need a Parenting Coordinator it is important that you consult with an experienced family law attorney in your area to discuss the pros and cons of requesting a parenting Coordinator in your case and whom to select as your Parenting Coordinator.

The Law Firm of Jessica M. Cotter, Esq.

18301 North 79 Ave

Suite F-168

Glendale, Arizona 85308

 602-843-3004

Jessica.cotter @azbar.org

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