Tag Archives: attorney

  • 14
    Aug 16
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Photo of various pleadings in a probate case gone bad. Someone should have hired a lawyer.

Do I Need a Lawyer for an Informal Probate?

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After a loved one dies, one of the tasks is administering your loved one’s estate. You want to make a smart decision and not give everything to lawyers or the government. I understand. But, here’s the thing. Sometimes you can do it just fine without a lawyer. But sometimes things go wrong. And it’s hard for you (as a non-attorney) to know ahead of time whether you need a lawyer. In asking “Do I need a lawyer for an informal probate?”, consider the case of the Estate of Rogers, which was decided in 2013.

The short version of that case is as follows:

On June 22, 2006, Marion Rogers (Decedent) passed away. He was survived by a husband, Dolores Rogers (Dolores), and three children: Nancy, Gary, and Candace. In September, 2007, Gary filed an application to appoint himself personal representative of the estate and to probate the estate through intestate proceedings. He did this without using a lawyer. Nancy, Candace and Dolores all waived their rights to apply as personal representative and consented to the appointment of Gary. On February 12, 2010 Gary filed a closing statement seeking to close the probate estate. Nancy then filed an Objection and requested a hearing. Nancy also filed a Petition for Removal and Surcharge of Gary as personal representative. A hearing was held in September 2011, and the probate court heard testimony from Nancy, Candace, Gary, and Nancy’s husband.

Note: What could have taken one year and not involved the courts has now blown up. Five years later after their loved one’s death, the family is fighting in court. The trial court eventually dismissed Nancy’s Petition for Removal and Surcharge of the personal representative. And that was eventually upheld by the appellate court. But that’s not the issue. This family spent lots of money on lawyers to fight over the administration of this estate. In hindsight, it would have been much better for them to spend $8,000 $10,000 to have a lawyer handle the estate administration for them. (And that’s probably a high estimate for a really simple probate.)

Moral of the story: Get a lawyer to help you.

At Magellan Law, we have perfected the administration of informal probates. We’ll make sure your loved one’s estate gets processed quickly, efficiently, and correctly … so you can sleep at night knowing that you won’t become like the story above and get served with a lawsuit 5 years after your loved one’s death.

  • 05
    Aug 16
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Photo of a house that was cut in half in order to be moved.

Does a Beneficiary Deed Avoid Probate in Arizona?

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In Arizona, the owner of a house can deed that house to someone using a Beneficiary Deed. The good thing about it is that it’s revocable and it can avoid probate. The applicable statute is A.R.S. Section 13-405. Sounds pretty slick, right? So the question is … does a Beneficiary Deed avoid probate in Arizona?

There are three main problems that I see with using a Beneficiary Deed:

  1. If you name more than one beneficiary, those beneficiaries may not get along. They are taking title as tenants in common, meaning that they each own an undivided interest in the property. But what if one of the beneficiaries moves into the property and refuses to cooperate in selling it or letting the other beneficiary have use of the property. Also, do you really foresee your kids (or whoever the beneficiaries) living in that property like a big commune, along with their kids and grandkids and spouses and friends. I’ve actually seen that happen and it’s kind of crazy. Usually the only way to force all of the beneficiaries to agree to move out and sell the property is to file a legal action in civil court known as a Partition by Sale. This is sometimes called a “Forced Sale.” The rest of the beneficiaries will almost certainly be successful in forcing a sale.
  2. The other problem I sometimes see if naming only one family members as the beneficiary, and assuming that person will sell the house and divvy up the proceeds among the rest of the family. I’ve seen this happen more than once. The way it often happens is something like this: Mom owns the house. Mom signs a will naming son as Personal Representative (executor). The will states that everything gets divided among three kids. Mom then records a Beneficiary Deed giving the house to the son. Son decides to keep the house and tells his siblings “tough luck.” Son wins because the law is on his side.
  3. Some people get confused and think the Beneficiary Deed is the same as a will. They keep it safe with their important documents but never record it with the County Recorder. If the owner dies before the deed gets recorded, it is no good.

The actual way that a “forced sale” works is that the attorney prepares a Complaint for Partition. The applicable statute talks about getting three commissioners to work together and have the property surveyed. The statute was written with farm land or vacant land in mind. Obviously you can’t survey and divide a house (like the photo above). The statute is a little vague about alternatives, but it allows some wiggle room. I usually ask for a neutral third party (such as a licensed fiduciary) to be appointed. The court will order that the neutral party be appointed as a “commissioner” in order to list the house for sale and divide the proceeds. If someone is living in the house, the “commissioner” can start an eviction proceeding to remove the tenant.

Does this all sound pretty complicated? Yup. So the moral of the story is to use a Beneficiary Deed only if you are absolutely 100% sure that you want the property only going to a single beneficiary, and you name that single beneficiary on the deed. Otherwise, stay away from them. There are too many risks. Besides, there are plenty of better ways of handling an estate plan. Don’t be stingy. Hire a good lawyer (such as us) to help you. The money and time that you save your family in the long run will far outweigh the cost up front.

Have a question about this? Drop me an email at [email protected] or give us a shout at 602-443-4888.

  • 22
    Jul 15
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3 Ways to Reduce the Stress of a Conservatorship

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3 Ways to Reduce the Stress of a ConservatorshipThe illness, incapacity or death of a loved one is certainly an emotional blow to a family. Additional stress can come from disputes regarding the conservatorship of loved ones – especially when things don’t go smoothly.

A conservatorship deals with money, which can be stressful on its own. A conservator has many responsibilities in the position. In addition to managing the incapacitated person’s affairs, the conservator is responsible for keeping detailed accounting records and for providing annual reports to the courts that detail the protected person’s assets.

Here are three ways to reduce the stress of serving as conservator:

  1. Keep all financial accounts separate.
  2. Never use the money for personal expenditures.
  3. File annual accountings with the court.

Of course, there’s a fourth tip as well: Hire a qualified CPA or probate law firm to help you keep track of the conservatorship assets. This is often the best way to reduce stress in a conservatorship. It will give you the personal confidence that things are being done correctly, and will reduce your risk for personal liability.

Being a conservator is a detail-oriented job, and one that involves providing for the needs of the incapacitated person while keeping track of all income and expenditures. At the same time, family members or other involved parties may have concerns about how the conservator is fulfilling his or her responsibilities. They may wonder if conservator is making bad choices or they may even suspect the conservator of stealing money from the protected person’s accounts.

Wherever money is involved, emotions can run high (as can temptation). And since a conservatorship involves money management for a protected person, conservators need to take care to understand their responsibilities, and follow them. At the same time, family members or involved parties need to be aware of potential mistakes or, worse, misdoings.

If, for example, a conservator squanders money reserved for the care of the protected person, the family or involved parties may feel they need to call the police for assistance. But in these instances, the police will usually not take any action, stating that it is a “civil matter”. Such situations then must be handled through probate court.

If you suspect something is amiss with a conservator, do what you can to gather evidence about the situation to make sure the conservatorship is being handled properly. If the conservator is mishandling the estate, enlist the assistance of an experienced probate attorney to resolve the situation and, if necessary, recover lost funds or assets.

Remember, it is natural to feel some stress if you’re involved in a court proceeding involving a conservatorship. You are likely unfamiliar with particular court rules and laws as well as uncertain of how to deal with judges and lawyers.

But you’re not alone. If you have a loved one who needs the assistance of a conservator or have been appointed as a conservator, it’s important to consult with an experienced probate attorney.  We’re here to help – and to put your mind (as well as that of the protected person) at ease.

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Magellan Law, PLC

10617 North Hayden Road, Suite B-100, Scottsdale, AZ 85260

Office: 602-443-4888

Fax: 602-334-1311

[email protected]

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