Elder Law Issues

Assessing Testamentary Capacity. Making sure a client has capacity before signing any documents is an important aspect of being an attorney. Doctor’s notes and family testimony can only paint some of the picture. Additionally, capacity is not either “you have it or you don’t”. Capacity can change with age, experiences and even just time of day. In this podcast, we discuss how we look at capacity in our practice. We hope this gives a clear picture of why we do not include family in meetings with our clients, as well as what we are looking for in these meetings. Assessing testamentary capacity can be challenging without meeting with a client alone.

What if I Don’t Have POAs? POA, in this case, stands for power of attorney. These documents determine who will be making financial or health care decisions for you when you are unable. If you choose not to create these documents, it can cause confusion and possible court proceedings. In Arizona, a guardian may need to be appointed by the court to handle medical and care decisions for you, and a conservator may be needed to manage your finances. Both put decision making into the court’s hands instead of your own. Fortunately, both can be avoided by properly executed powers of attorney. We further discuss the question of, “what if I don’t have POAs?” in this podcast.

College bound estate planning is not something many people consider as their child goes off to university. Once someone turns eighteen, most parents will no longer be their legal guardian. This may lead to a loss of access to information about their child. Hospitals, universities, banks and other institutions will likely not divulge any information about the adult child that is protected. In this podcast we discuss options that parents have for staying in the loop on their children’s health and finances. Whether it is using forms provided by various institutions or taking your child to see an attorney before they go off to school; it is best to do some college bound estate planning before they leave.

Naming a Fiduciary Who Will Just Hire the Firm. Many clients want to name their children, friends or other family members in fiduciary roles in their estate planning documents. Some may also have the expectation that these individuals will simply request the law firm that drafted their documents to assist them. In this podcast, we discuss why this is not always the case. Sometimes the firm that drafted your documents will not be able to represent your family member, and even if they do… this does not take away all of that family member’s duties and responsibilities. Which is why you should take some time to think before naming a fiduciary who will just hire the firm.

Clients often become wary of updating their estate plans after they receive a dementia diagnosis. Fortunately, a diagnosis is not necessarily the cut off for capacity. In this podcast we discuss the level of capacity required to complete estate planning documents. We also discuss some of our experiences with clients who have cognitive impairment diagnoses of various persuasions. Many of them were still able to articulate their wishes and update their documents. A dementia diagnosis does not have to put a stop to your estate plans. In fact, it may be a good indicator to speak with an attorney before it becomes too late.

Why Won’t My Family Share Trust Information? This may be one of the most common questions we receive as an elder law firm. It may be that you are not entitled to the information… or that the trustee is deliberately hiding information you are entitled to receive. Without a copy of the trust, it is impossible to say. Unfortunately, there is no repository of trusts created for law firms such as ours to draw from. Even if you do have a copy, there is not even a guarantee it is the most recent version of the trust. In this podcast we discuss what your options are and when to seek legal advice. Hopefully you’ll think of this podcast if you ever wonder, “Why Won’t My Family Share Trust Information?”

AI in The Practice of Law AI is becoming a greater part of everyday life and that includes the legal profession. In this podcast we discuss the applications and pitfalls of AI in the legal space. We touch on hallucinations, confidentiality concerns and human review. Time savings, research and analysis benefits are also points of discussion we will mention. Our experience includes the use of the Clio case management software and its AI systems (especially Vincent), as well as other larger language models. Hopefully this discussion will provide you with a better understanding of AI in the practice of law.

Gray Divorce is a concept where older couples divorce late in life. This can be done for personal reasons; however, many wish to use divorce as a tool to get an unwell spouse onto public benefits. While this can work under certain circumstances, we discuss why in most this is unadvisable. Divorce can also have unintended consequences. Such as, the capable now ex-spouse having no authority over medical decisions or the estate of the unwell spouse. The wealth distribution also needs to be considered after a divorce. If the assets are evenly split, the capable spouse may be left with a residence and no cash or vice versa. Agencies will look at the divorce with scrutiny if the asset split is much more favorable to the capable spouse. In this podcast, we discuss alternatives and possible scenarios where a gray divorce might make sense.

Family Real Estate Assistance It is somewhat common for family members to want to assist their loved ones with real estate purchases. Whether this is help with a down payment, outright gifting of a property, or some kind of loan. For estate and tax purposes; however, it is important to be clear about the type of help you are giving. Family real estate assistance can be an amazing gift if done right but good documentation is needed for this. We discuss potential mistakes and consequences for not creating this documentation in this podcast. Today we are joined by friend of the firm (and fellow Tucson attorney), Jeffrey Neff from Neff Law, PLLC.

Today we are taking a look at the Hermitage No-Kill Cat Shelter & Sanctuary. Cats have a special place in many of our hearts. Several of our staff own cats and one of our attorneys, Jordan S. Young, even volunteers for the Hermitage. We discuss the Hermitage in this podcast because many of our clients discuss ways they would like to provide for the care of their pets after they pass. The Hermitage has a program specifically for this, so we believe taking a look at the Hermitage may give you some helpful ideas on how to incorporate your furry friends into your estate plans. This week we are joined by Michelle and Tiffany from the Hermitage No-Kill Cat Shelter & Sanctuary.

AI and Deeds We have had many clients over the past couple of years wonder if Artificial Intelligence could create deeds and other documents for them. While AI can create documents, we do not often recommend using it for this purpose. AI lacks nuance and expertise. It can also make errors that are easy to overlook. In this podcast we discuss artificial intelligence’s role in creating deeds. We also touch on a human attorney’s role in the preparation of a deed and the positives they bring to the table. Today we are joined by friend of the firm (and fellow Tucson attorney), Jeffrey Neff from Neff Law, PLLC.

Today we thought we would provide an example of how charitable giving works. We are joined by Alyce Sadongei the executive director of Mission Garden. Mission Garden is a favorite charity of Fleming & Curti, PLC. In this podcast, Alyce Sadongei and Robert B. Fleming discuss how a charitable organization operates and how gifts are likely to be used. You may feel tempted to leave a charitable gift with a caveat that it be used in a specific way. Charities would love to respect your wishes; however, restricting them may impinge on or distract from their mission. We speak about the importance of how charitable giving works best in organizations so that maybe you will feel more comfortable with a general gift. Getting to know a charity that really resonates with the soul is crucial for this.

Retirement accounts offer one of the most effective ways to make charitable gifts. Actually, two of the most effective ways. Charitable giving using Individual Retirement Accounts (IRAs) can be very tax efficient during your life, especially if you are over age 70 (70 1/2, actually, but let’s not quibble). And if you have reached your “required beginning date” for mandatory distributions, the power of lifetime gifts from your IRA is enhanced even further. IRAs and other kinds of retirement accounts also offer one of the most efficient ways to make gifts upon your death. Join us for a discussion of some of the specifics. And keep an open mind about how you might increase your charitable giving using these marvelous instruments. This entire month we have been focusing on charitable giving as part of your estate plan. Check out our podcasts on other kinds of charitable planning ideas, and the specifics of one local Tucson charity, Mission Garden. In our next episode, we’ll talk with Mission Garden’s Executive Director about your favorite charity’s favorite way to receive donations.

Making charitable gifts is important to a lot of our clients. It’s a great way to make an impact on your local community. And it’s important to the operation of a robust local charitable economy, especially in times of shortages. We’ve been talking a lot about making charitable gifts this month. Think of it as our own personal Charitable Giving Month. Your favorite charity might promote some of the ideas we describe, and we’d like to help you understand what they’re talking about. While we suggest giving to charities for the sake of charity, sometimes you can enjoy some tax benefits at the same time. Depending on the asset you would like to give, this can be easy… but some assets (like cryptocurrency, or business interests) may be more complicated to donate. Join us in a discussion of the types of assets you may want to give (or leave) to charities for better tax outcomes. Making charitable gifts is a wonderful use of your assets and firms like Fleming & Curti, PLC can help guide you through the process.

We have discussed charitable giving in past podcasts and newsletters. In today’s podcast episode we want to share about some — OK, let’s start with one — of our personal favorite local charities. Join us while we talk about the Friends of Tucson’s Birthplace and their signature project: Mission Garden. We talk with Alyce Sadongei, the Executive Director of the Friends of Tucson’s Birthplace/Mission Garden. she describes the living museum of Tucson’s agricultural heritage. Have you visited Mission Garden yourself? We recommend that you go to the base of “A” Mountain and take a look at the living agricultural park/museum/historical representation. We are pretty sure that you will be astonished by your first visit — we know that we were. Local charities provide the same tax benefits as national charities but can be much more satisfying to the soul. They can also have a bigger impact on Tucson and Tucsonans. At Fleming & Curti, PLC, we think that charitable giving is important. And we have our own personal favorite projects that we support — and urge others to join us in supporting.

Some clients express interest in corporate or independent trustees serving as their successors in trusts they have or want to establish. In this podcast we discuss our experiences serving as a corporate trustee. We describe some of the services we offer as well as examples of the type of work we get into. Today we are joined by friend of the firm, Bridget Swartz from Mission Management and Trust Co. Mission Management is a local corporate trust company that we deal with on a regular basis. We have nothing but positive things to say about Bridget and Mission Management!

Probates in other states can vary greatly from Arizona’s process. This means that advice you receive in Arizona may not apply in states like New York or Texas. For example: some states treat married couples’ assets as community property and others do not. Moving from state to state may also complicate this process. Certain documents may even be invalidated by moving.   While we may not be licensed to practice law in other states, we have experience with out of state probates. In this podcast we discuss some of these experiences. We also emphasize the importance of seeking legal advice within the state you reside.

Trusts and Real Estate Many of us want to leave a legacy. Leaving real estate in trust for loved ones can be a tempting way to accomplish that goal. However, few grasp all of the consequences and potential issues of this choice. It is one thing to have a trustee sell real estate upon your death, and another for them to use trust funds to maintain a home for someone else. In this podcast we discuss some of the potential issues and a few benefits of trusts and real estate. Today we are joined by friend of the firm, Bridget Swartz from Mission Management.

Joint bank accounts are a useful tool for certain estate planning goals. Unfortunately, there are many pitfalls that people do not anticipate when establishing them. Establishing joint ownership of an account with a child or loved one will allow them to manage that account for you if you become incapacitated. The downside is that once you inevitably die, they will inherit the account regardless of any other documentation you prepare. This can work for or against a well-crafted estate plan. In this podcast we discuss alternatives to joint bank accounts as well as other consequences that most well-meaning people do not consider.

There are several misconceptions about intergenerational wealth transfer. Many families believe that sharing copies of wills or trusts will prevent misunderstandings. In reality, this can create family conflict, confusion, and estate disputes if changes occur later. In this podcast, we discuss key considerations for sharing estate planning information with children, grandchildren, and other beneficiaries. We explain why it is usually best to keep estate plan documents private. At the same time, critical information, like powers of attorney, emergency contacts, and attorney guidance, should be shared. This ensures loved ones know who to call and how to act in case of incapacity or death. We also address special situations. These include planning for beneficiaries with disabilities, managing tax implications, and protecting family members from financial risks. Our goal is to provide clear guidance that protects estate plans, supports smooth intergenerational wealth transfer, and prevents disputes.

This week we host our valued colleague Liz Homes. She talks about some of the problems a special needs trust beneficiary might face when moving to a new state. Beneficiaries (and families) may assume a trust created in one state works the same everywhere, but each state follows different rules and uses different terms. We discuss typical considerations when moving a special needs trust across state lines. Attorneys often need to review and update trust documents to meet the new state’s requirements. We also explain how Medicaid rules and Social Security implementation can change from state to state, affecting the trust. There are practical interstate issues that can arise during the process, including different legal terms, possible court involvement, and the need for attorneys in both states to coordinate. Sometimes the move can seem to get bogged down in transition — and life often gets involved, too. Liz also highlights strategies families can use to prepare for these transitions, common issues to avoid, and the importance of planning ahead to ensure the trust continues to serve the beneficiary’s needs. By understanding these factors, families can make more informed decisions and reduce unexpected complications when a trust crosses state lines.

Succession Planning for Family Businesses requires careful preparation to balance retirement needs, business value, and family dynamics. A business owner must first assess personal financial security, especially when they have reinvested profits instead of building savings. Determining the company’s true value, evaluating income potential, and understanding all tangible and intangible assets, such as equipment, intellectual property, or business goodwill, is essential before transferring ownership. Proper valuation ensures both the owner’s retirement needs and the business’s long-term stability are met. Heirs may have different skills, interests, or goals, so owners must address potential conflicts early and make clear, informed decisions. Open communication and setting expectations help reduce misunderstandings and prepare heirs to take on management or ownership roles. Advisors, including CPAs and legal counsel, guide owners through tax planning, business structuring, and risk reduction. Planning for incapacity is equally important, so a trusted individual can manage daily operations if the owner becomes unable to do so. Owners should avoid rushing decisions or relying on informal arrangements. Instead, they should follow a gradual, deliberate process. By gathering accurate financial information, evaluating multiple strategies, and involving trusted advisors, owners can ensure a smooth transition, protect family relationships, and preserve long-term business success. Thoughtful succession planning safeguards both the owner’s legacy and the future growth of the family business.

Planning For Digital Assets This episode explains how digital assets affect modern estate planning. Digital assets include social media accounts, online banking profiles, investment platforms, cryptocurrency wallets, and other online accounts. Many of these accounts hold financial or personal value. Because people manage much of their lives online, these assets often become an important part of an estate. The discussion describes the challenges fiduciaries face when they manage digital accounts after someone dies. Personal representatives and trustees must contact the companies that control each account. Every platform sets its own rules and terms of service. These rules often limit how someone can access an account. State laws allow fiduciaries to request access to digital assets. However, companies still decide whether they will provide that access. Planning ahead is also identified as an important step. Creating an organized list of digital accounts helps fiduciaries locate and manage them. Reviewing estate planning documents also helps ensure they address digital property. Careful planning helps families reduce confusion and avoid legal or administrative problems.

There are many myths regarding estate and trust administration. Trust administration is quick, easy and flexible. Probate is expensive, slow and a hassle. Google and AI assistants are often quick to confirm these myths. They are trained on data that frequently contains references to misconceptions about these processes. In this podcast we discuss the most pervasive myths in the estate and trust administration business. Our goal is to paint a more realistic picture of the estate and trust admin process and clear up confusion that these myths often cause. It is also important to note that we are an Arizona law firm and so the misconceptions we discuss will be from an Arizona law perspective.

Planning for emergency hospitalizations is not something people like to think about, and different document types can cause confusion. What is the difference between health care powers of attorney, advance directives and DNR forms? Where should these documents be stored? Should you register you documents with the Arizona Health Care Directive Registry? What is “code status”? How should your medication lists be handled? Have you thought about who will care for your pets? In this podcast, we discuss all of these points to provide some general advice for emergency planning from a case management setting. Planning for emergency hospitalizations can be daunting, but we hope you’ll consider doing so after listening in.

What are ILITs and Crummey Trusts? You may have heard of these terms for various trusts before. They can be a bit of a pain to administer for beneficiaries and successor trustees, but they are powerful tools that can help ease tax pains later. In this podcast we explore how ILITs and Crummey Trusts differ from standard revocable trusts and when they might be useful when crafting an estate plan. We do enjoy history, so just a word of historical context. D. Clifford and Ethel E. Crummey created the trust that would immortalize their surname in 1962. It took six years for the IRS challenge to the trust to make it through the court system. But Mr. and Mrs. Crummey’s trust, as it turned out, was neither crummy nor crumby. And, though it was not an eyelet, it was an ILIT.

Long Term Care Advice Everyone hopes to never need long term care, and as a result many do not plan for it until it becomes necessary. Fortunately, options exist for both private and government assisted care. In this podcast we discuss some of the benefits and qualifications for government assistance like Medicaid, as well as the positives for sticking with private care.

Veterans benefits can make a large difference for veterans; however, did you know that surviving spouses of veterans may also qualify for benefits? Some people may may not realize that they also qualify for additional benefits, such as aid and attendance. We discuss these benefits and some of the qualifications that a veteran or their spouse will need to meet. In this podcast we are joined by our friend Marsha Goodman, a certified Elder Law Attorney located in Phoenix, Arizona.

Estate planning with minor children can have challenges that many people do not realize. At least in Arizona, minors cannot collect inheritances or open bank accounts… they cannot even direct their parents to do so on their behalf. As a result, leaving an inheritance to minor children outright can be a very costly mistake. In addition, minors cannot serve as your agent in powers of attorney. This is why various mechanisms exist to provide for minor children after death. In this podcast we discuss some of these mechanisms so you can avoid the challenges of estate planning with minor children.

The death of a loved one is already a very uncomfortable situation, and the last thing anyone wants to do is deal with a Social Security office right after. Fortunately, you do not have to go to their office. In this podcast we discuss who handles reporting of deaths to Social Security. We also discuss the Social Security benefits that should be expected after a loved one’s death.

Declining to Serve as Trustee (and other roles) It is very easy for people to feel obligated to serve in a fiduciary role if they have been nominated. Roles such as trustee, agent or personal representative require a great deal of responsibility and work. Fulfilling these roles can be confusing, tiring and frustrating. Fortunately, if you have been nominated you do not have to serve. Fiduciary roles are not obligatory, and, in this podcast, we discuss the option of declining to serve as trustee. We also touch on resigning as trustee if you decided to serve but then became overwhelmed.

Thinking about updating your estate plan in 2026? Happy New Year! 2025 brought with it many questions regarding the future of laws pertaining to estate planning. Now that 2026 has rolled around, you and your loved ones may be wondering if it is time to update your estate plans. In this podcast, we discuss updates to laws that will affect estate plans from 2026 onward. We also share some personal anecdotes regarding our own estate planning updates and how often we believe someone should consider updating their own estate plan. After listening, you may consider updating your estate plan in 2026 as well.

Clients often wonder about the process of executing their estate planning documents. In this modern era, it seems to many like they ought to be able to sign their documents electronically without an office visit. It is usually not that simple. Different documents have different requirements for what is legally considered a valid signature. A witnessed signature is often a requirement, and some clients ask if their family members can act as witnesses. In this podcast we discuss the importance of a witnessed signature, who is best suited to serving as a witness and why legal counsel is important in this process.

2026 ABLE Act Updates ABLE Act accounts are a great tool to assist people with disabilities. Unfortunately, many individuals with disabilities became disabled after reaching the age of 26. This meant that this tool was largely inaccessible to individuals who suffered injuries from work, automotive or other accidents in their late twenties or early thirties. Good news! Effective January 1, 2026, ABLE Act accounts can be established for individuals who became disabled before the age of forty-six. In this podcast we discuss this update and how these 2026 ABLE Act updates will affect a variety of age groups going forward.

The benefits of a donor advised fund. With tax season on the horizon, many charitably minded people will want to make the most of their charitable deductions. Most tax filers do not itemize their deductions which makes it difficult to get more than the standard deduction. While it is important to confirm any tax strategy with a CPA, a donor advised fund can be a great tool. This is especially true if someone expects to have greater income tax considerations in a specific year. In this podcast, we discuss the benefits of a donor advised fund and how these funds work.

Supporting a Grandchild with a Disability Many families will have the experience of raising a child or grandchild with a disability. Fortunately, for grandparents there are a variety of options they can use to support disabled grandchildren. Several options include third party special needs trusts, ABLE act accounts, UTMA accounts and possibly 529 accounts. There are several factors to consider when deciding which of these tools to use. Does the grandparent want to gift during their lifetime, or after their death? How much does the grandparent want to leave? Does the family want a mechanism that multiple members can use to support the grandchild? In this podcast we discuss the positive and negative aspects of each of these tools. Supporting a grandchild with a disability can be complicated but careful planning can help mitigate this.

The Pros of Title Insurance. Have you ever inherited property with an issue in the title? This is a fairly common problem as property changes hands through generations. Title insurance can be a boring topic but it could be the solution to this issue. In this podcast we discuss the benefits of cleaning up the title on deeds and why it may be necessary to do so. It may be especially relevant in Arizona, where we practice.

When you have us prepare your estate plan, you might ask us to arrange for an equal or equitable division of the assets among your children. Of course, the issue can come up in a variety of contexts. Maybe you’re disinheriting one child. Or maybe the division in your case is among nieces and nephews — or even among friends. How much of your decision-making is focused on whether your beneficiaries might have hurt feelings, or might disagree among themselves? And what is the difference between an “equal” or “equitable” division? Join us for this podcast episode, while we discuss the division choices facing our clients.

Estate Planning for Young People. Should you be concerned about having an estate plan if you are under 40? Most people think they need an estate plan when they are older; however, there are good reasons to consider an estate plan at any age. Estate planning at a young age can prepare you and your loved ones for the unexpected. Even if death is unlikely, it can be good to think about who will assist you if you become incapacitated. With this in mind, what are some of the documents you may need? Do you need a trust? Powers of attorney? A will? Estate planning for young people does not need to be complicated and we discuss all of these points in this podcast with a guest, Jessica Field, from https://www.yourspiritualwellnesscoach.com/

Personal Property Planning Before Death. Many of your belongings are precious to you. You worked hard to acquire them. The transition from your property to your heirs should be seamless, but it often isn’t. Your personal belongings may make up only a small portion of your estate. That being said, some of the biggest headaches for your family will often revolve around personal property. Did you create a list of who gets what property? Did you lock up your belongings? Can your loved ones find them? Did you tell your successors to secure them after you die? This podcast deals with personal property planning before death and gives some helpful tips for you to ensure the correct distribution of your belongings.

Finding Purpose Through Charitable Planning. During the estate planning process, people frequently consider how to convey assets to charity when they die. This podcast examines the personal benefits that are sometimes overlooked when people engage in gift-giving during life. People who engage in charitable gifting during life may find benefits that reach far beyond tax deduction. Jessica Field, a spiritual wellness coach, joins us to talk about how making charitable gifts during life can deepen connection with community and give special purpose.

Clients often ask to set incapacity standards in their trusts and powers of attorney. Typically, they might suggest a requirement that two physicians certify incapacity before a successor trustee, or an agent, may act. We discourage these limitations. In practice they cause more problems than protections. Anyone tried to get a physician to write a letter recently? Compound that with two letters. And who is your physician, anyway? Is your primary care actually in the hands of a nurse practitioner? If you’re in the hospital, or have moved to a facility, who is responsible for determining your level of capacity. A recent case in our office pointed out the folly of rigorous incapacity standards. The document required two physicians licensed in the state where the signer lived when he executed the documents. But he hadn’t lived there in a year or more. He couldn’t sign new documents at this point. So what did we do? We filed a court proceeding to determine his capacity. In other words, the very kind of action he intended to avoid by planning ahead and signing a power of attorney and a living trust.

We frequently see one of the same handful of trust administration misunderstandings. From the length of time required, to the tax effect, to the court’s involvement, there are a batch of common misunderstandings. Do we have to go to court? Can we do anything to cut off creditors’ claims? How long does it take? Can the trustee make distributions right away? These are some of the issues we discuss in this week’s podcast episode.

You may have heard of an after death checklist but what does it contain? Losing someone you love is always difficult so people often find keeping a list helps them stay organized through the chaos. Should you prioritize getting death certificates? Should you notify Social Security or the various places your loved one did business with? Did your loved one have pets that need care? What about firearms, creditors and real estate? Today we discuss the most important things to do right after a loved one has died.

Have you ever heard of an Advance Directive? Do you know what this document is? How do Advance Directives work in practice? What is the difference between an Advance Directive and a Health Care Power of Attorney? Probably the best question: What is the difference between having a law firm create an Advance Directive for you versus filling out a form online or at the doctor’s office? We will discuss these questions. Your health care wishes are unique and we believe you should understand how the medical community uses Advance Directives in practice. Remember: we practice law in Arizona, and are telling you how things work in our state. In other states you might see different results.

Are you considering buying a house for your child? Or maybe helping finance the purchase with a loan or gift? We have so many questions for you. Are you planning on taking a note back, secured by an interest in the house? Or maybe jointly owning it? And what effect will either of those choices have on your own credit rating, income, and taxes? Not the least important question: how will buying a house for one of your heirs affect your estate planning for the others? Will the house be treated as an advance on their inheritance? What about gain in value of “their” house between now and your death? If you buy it in your own name, can they afford to “buy” it back from your estate (by paying off their siblings’ interests, for example)? And at what price. We discuss these and other questions about the idea of buying a house for one of your children. We think your gesture is generous, and we hope they appreciate it. But there are complications.

Should you name co-fiduciaries in your estate planning documents? In other words, should you name your two (or more) children to serve as joint successor trustees, or personal representatives, or agents? Our short answer: no. Co-fiduciaries do not generally make things easier or fairer — they instead are likely to create additional confusion and disagreement. And with two people in charge, it’s harder to identify who is responsible for which steps. The inclination is common. I love my children equally, and don’t want to choose one over the other. So I want them to serve as co-fiduciaries. They mostly get along, and they work together well. What could go wrong? A lot. And not just in their relationships with one another. Think about your banker, your stockbroker, your real estate agent. Do all of them get along with your children, too?

Arizonans can hold title to a vehicle your name, in joint names or in the name of your revocable living trust. Which should you use? As it happens, it’s easy to transfer title to a vehicle after your death. Married couples often hold title in “or” form (e.g.: John or Mary Doe). That amounts to the same thing as joint tenancy. Either John or Mary can transfer the title, and either can transfer title after the death of the other. But even if there is only one name on the title, most vehicles can be collected by a simple affidavit of collection. That simplified method works in Arizona for up to $200,000 of personal property. Arizona even permits a “beneficiary designation” for vehicle titles. You can download the form on the Arizona Department of Transportation’s Motor Vehicle Division website and simply attach it to your vehicle title. So should you transfer title to your vehicle(s) to your trust? Mostly we think it’s more trouble than it’s worth. But join us for our podcast and we will explain more fully. Keep in mind that we are Arizona lawyers, and we’re explaining Arizona law and process. In other states, well, your mileage may vary.

We usually agree to joint representation of spouses in estate planning. Most married couples would be surprised to hear that there is any controversy or concern about that kind of arrangement. But joint representation is actually an ethical challenge for lawyers. We try to make sure married couples understand that there are tradeoffs in having us represent both spouses. This is true for any lawyer, incidentally. Your lawyer owes you a duty of disclosure AND a duty of confidentiality. That usually works just fine when a married couple is in agreement about their plans, and willing to waive any conflict. But we don’t know that the joint representation will remain appropriate for the long haul. If and when things change, it may be too late to pull away from the dual role. We are generally comfortable if married couples agree to waive the potential conflict. And we are not interested in creating conflicts where none exist. But it is usually not such a simple concept to create joint representation. Once we do embark on the arrangement, we remain alert to the possibility that things might change. How do we know that there is a growing problem? Perhaps one spouse calls and asks whether they could unilaterally change their estate plan. Or they tell us that they are separating from their spouse, or that their spouse has become demented. In each of those circumstances, joint representation can be a concern, and we may have a duty to disclose the contact to the other spouse. And that may be true even if there has been a prior waiver of the conflict. And, by the way — the exact same concerns arise in joint representation of unmarried couples. Except, perhaps, that there is an even higher likelihood of things getting crosswise down the road.

Are there alternatives available to creation or management of small trusts? Of course there are. We talk about several of the most common alternatives in this week’s podcast episode. In the appropriate circumstances (and after good legal advice) an Arizona trustee might be able to simply terminate the trust and distribute the balance to the appropriate beneficiary or beneficiaries. Sometimes it might be advisable to look into a Uniform Transfer to Minors Act (UTMA) account. Other trustees might consider educational account arrangements (like a 529 account) for a beneficiary or, if the beneficiary is disabled, an ABLE Act account. Be careful. Get good legal advice. But consider some of the alternatives for managing a small trust. Even earlier than that, an individual or couple thinking about establishing a trust might consider some of those same alternatives. Creation of what might turn out to be a small trust might not be the best — or only — choice. Or the creator (settlor) of the trust might want to expressly give the trustee some flexibility. That might inlude some of the same alternatives to consider once the trust is established. Of course, the settlor of the trust might not be able to anticipate exactly what the circumstances might turn out to be later. And what seems to one person like a small trust might actually be a very substantial amount to the beneficiary or others involved. As always, get good legal advice. And, as always, we want to make clear that our information relies on Arizona law. The rules might be different in your jurisdiction.