Elder Law Issues

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.

Do you have a spendthrift provision in your trust? Have you wondered how that actually works? In this week’s podcast, we discuss the mechanics of spendthrift trusts and how a trustee might interpret the limitations — and the authority.

The American Bar Association’s Model Rules of Professional Conduct govern most lawyers’ ethical duties. For elder law attorneys, particularly, one of the main principles goes by the name of one of those rules: Ethical Rule 1.14. What does Rule 1.14 say? It addresses representation when a client has diminished capacity. The lawyer must treat the client as nearly normally as possible. Elder law attorneys often see clients with dementia, mental health issues or other limiting factors. Our job is to try to look past those limitations and figure out the client’s wishes — and how to help them as much as possible. The ABA extensively updated its rules just after the turn of the century. Arizona quickly followed suit. Ethical Rule 1.14 was rewritten in Arizona (along with the entire set of ethical rules) in 2003. That’s the most recent major update, though some tinkering has taken place. Now comes news that the ABA is reviewing its Model Rules — including Ethical Rule 1.14. And in general, the changes are even more supportive of the client’s control and self-determination. Join us for a discussion of some of the changes — in text and tone.

Continuing Care Retirement Communities (usually referred to as CCRCs) are a relatively new idea. What if you could move into an independent living apartment with elegant appointments. In the same complex, there would be an assisted living wing and even a skilled nursing facility. That way you could simply move from one part of the complex to another as you aged and needed increasing assistance. But that does mean two things: The facility will need to be large enough to have all of the options, and have enough residents to keep the census high. Residents are needed in order for the faiclity to offer a full range of services. The plan has to be long-term. New residents might expect to live in the Continuing Care Retirement Community for twenty or even thirty years. Both of those concerns mean that the project will have to be well capitalized. And that creates the very tension that we most often see: most CCRCs have a very healthy buy-in requirement. In fact, the national average entrance fee for Continuing Care Retirement Communities might be as high as $400,000! There are only a handful of Continuing Care Retirement Communities in Southern Arizona, and they range from modest to plush. We’ve had clients in all of them, and can report that those clients say they like the amenities and living arrangements. But it can be a daunting decision to buy into a CCRC, for certain.

We so often hear (see, read) common myths about estate planning. Recently we wrote about the myths we encounter regarding special needs planning. Last year we busted (we hope) some of the myths about wills and trusts. For this podcast episode, we revisit common myths about wills. Talking about them gives us a chance to expand a little bit on the misunderstandings and misimpressions we encounter. It also helps us elucidate the issues for aural learners.

Great! You’ve completed your estate planning. We’ve helped you get things titled correctly and your beneficiaries established. What advice do we have for you now? No futzing. Please. We see it all the time. Clients focus on their estate planning and complete the documents. They get beneficiary designations completed. They get to take a deep breath and stop thinking about their estate planning for — well, at least for a few years, or until something changes in their lives. But instead, they listen to their neighbor, hairdresser, bank teller. Even their accountant and sometimes their financial advisor might tell them they need to change their beneficiary designations. Or they scribble on their estate planning documents late one evening, considering making changes. Hey! No futzing! Do you want to make changes? Please come back and see us. Yes, we will charge you for follow-up work. But that’s because we know what we’re doing, and how to get to where you want to go. We can help you. And we can get the big picture and how your changes would affect shares, tax liabilities, efficiency and probate avoidance. We’re actually better lawyers than all those advisors. We might not now how to file your tax returns, or what investments to change, or what hairstyle would look good on you. But we do know estate planning. And we want yours to be effective.

A recent Wall Street Journal article reminded us about beneficiary deed problems. The article pointed out a number of concerns about the growing use of beneficiary deeds as part of estate planning. Actually, beneficiary deeds are too often used instead of thoughtful estate planning. What are the beneficiary deed problems we see? In addition to the ones mentioned in the WSJ article (like loss of property insurance on death of the owner), we have seen some of these: Family disharmony can be exacerbated. Would you recommend all of your children creating a partnership with no managing partner? We wouldn’t, either. The relationship between beneficiary deeds and living trusts confuses many lay people. That relationship is not obvious, and we see people creating ineffective beneficiary deeds for property already titled to their living trust. Some beneficiary deed problems arise after later events — like the death of a beneficiary, or marriage or divorce. Beneficiary deeds are not a suitable mechanism for imposing limitations like keeping property out of an in-law’s name, or avoiding public benefits problems), or creating a life estate that ends when the beneficiary moves out of the house. Those kinds of specialized problems usually call for a trust rather than a beneficiary deed. All of which is not to say we don’t like or use beneficiary deeds. We just want to help you use them correctly when they are an appropriate choice.

Fleming & Curti, PLC, co-founder Tom Curti dropped by for a visit (and some carrot cake) last week. It was his birthday. Happy birthday, Tom! While he was here, we dragged Tom into our broadcast booth to talk about his retirement (he’s been fully retired for a little more than five years now). Also about his connection to the practice, his clients and his colleagues. We counsel clients on retirement issues every day. It’s an interesting change of perspective to consider one of our own retiring.

What happens on the death of a fiduciary? That is, who takes over as trustee, conservator, agent on a power of attorney or other fiduciary? And what do they have to do to assume their new role? Death of a fiduciary is not often anticipated. It’s hard to think that you might outlive the person you name to take over on your own incapacity or death. But you might be surprised at how often we see the problem arise. The problems are at least two-fold. How do we know who is next in line, and what steps do they have to take to secure their authority? We talk about the problems and how we see them arise in this podcast episode. We hope this information is helpful to you if you are acting as fiduciary. It should also help you in planning your own trustee succession, or selecting agents for your own power(s) of attorney.

Last year the Arizona legislature adopted a new law based on a national model. The Uniform Partition of Heirs Property Act looks a little bit like a simplified probate proceeding, though it has a slightly different focus. The problem: sometimes, and especially after the death of a property owner if no one initiates a probate proceeding, the interests of descendants can be complicated and difficult to determine. A grandchild, for example, might own a 1/32 interest in the property. And her cousin might own a 1/28 interest. There might be a dozen (or more) heirs with varying interests. This fractionalization leads to a difficult problem in many cases. An heir wanting to cash out their small interest might sell it — perhaps to an outsider. That buyer might then initiate a partition action, forcing the sale of the entire property. Family members can lose their interests, and often for a small portion of the real value of that interest. This partition of heirs property can divest families of inherited wealth. If the liquidation was more orderly, some heirs might be able to buy out other heirs. Or at least some heir (or a small group) might be tasked with securing the best price possible. Everyone in the family could benefit. That’s what the Uniform Partition of Heirs Property Act does. It helps head off the opportunistic sale of property and allows for the preservation of generational wealth. It can even allow heirs to end up owning the family property, and at a price that is fair to all involved.  

At Fleming & Curti, PLC, we are sometimes named as a future fiduciary. That is, you might have named us as successor trustee, to take over on your death (or disability). Or perhaps you’ve named us as agents on your power of attorney. When we are scheduled to be a future fiduciary, what role do we take in the meantime? We do want to keep in contact. We want to know if we need to step in. Or perhaps the time for our involvement is growing near, and we want to keep tabs on how you’re doing. Sometimes people move on — and sometimes that means they literally have moved. We’d like to know whether our future involvement is still likely, so that we know how closely to watch out for you. On the other hand, we don’t want to be intrusive or expensive. We don’t want to pester you about the future fiduciary role. And we don’t want to visit unless there’s a reason for us to do so.

Pope Francis died earlier this month. You almost certainly knew that. But what you might not have heard or read about is that even the Pope left a will. The will Pope Francis signed two years ago, though, was unusual. It didn’t address anything about his property, or who would receive anything. It didn’t even indicate whether the Pope had any property to leave to anyone, or whether he had made other arrangements for property disposition. The Pope’s will explicitly identifies itself as his last testamentary will. But it dealt entirely with his wishes for public viewing, burial and identification of his tomb. Pope Francis elegantly described his purpose and intent. But it wasn’t a “will” in the sense that we usually think of. Is there a lesson for the rest of us in Pope Francis’s will? You can include your funeral and burial wishes in your will, too. You can also include such provisions in your powers of attorney, or in a separate document intended to give guidance and direction to your survivors. And we think you should shoot for the quiet elegance evinced by Pope Francis. No need to write it in Latin; plain English should be fine.

Advance directives and DNR orders confuse laypeople. Especially in Arizona, where the existence of a special kind of advance directive adds to the confusion. We’ve written (and talked) about the Pre-Hospital Medical Care Directive before. It’s an Arizona-specific form. Most people refer to it as “the orange form.” And quite a few of them call it a DNR Order. It’s not really a DNR, though it might get to the same result. It’s actually more like the POLST paradigm, a concept familiar to people who live and work in other states. Or at least it is more like that in its effect. The Arizona orange form is nothing like a POLST order in appearance. Confused? Yeah, we get it. Join us for some discussion about advance directives and DNR orders. We’ll try to make it make more senes.

The Social Security Fairness Act of 2023 was, confusingly, signed into law on January 5, 2025. More confusion: what the Act did was to eliminate Social Security’s Windfall Elimination Provision. Wait — it eliminated an elimination? Yes, that’s right. At the same time, the new law also eliminated the Government Pension Offset. The WEP and GPO, together, had reduced Social Security payments for people who had paid into both Social Security and some other pension program. Those provisions were intended to prevent workers from qualifying for two different pension amounts — but not because they didn’t deserve the payments. In fact, they clearly DID deserve their full payment amounts. So now a lot of our clients suddenly see an increase in their Social Security pension amounts, plus sometimes sizeable back payments. In this podcast episode, we talk about the Social Security Fairness Act and how it affects beneficiaries.

Springing vs surviving powers of attorney: what’s the difference? Which is better? As we explain in this week’s podcast episode, there’s not really a “better” choice. Or at least, there’s not a choice that’s better for everyone. The “springing vs surviving” debate is about whether you wish your financial power of attorney to be immediately effective (“surviving”) or want it to only become effective if/when you become incapacitated (“springing”). You need to be comfortable with your choice. As we discuss, there’s also an intermediate option. You can make your power of attorney immediately effective, but require evidence of your incapacity for alternate agents to act. That way you can name a completely trusted individual (a spouse, perhaps) to have general access to your finances. Then you can name a backup person whose authority would only arise if they can demonstrate that you are incapacitated AND your first-choice agent is unavailable. In any event, we suggest that your durable financial power of attorney and the related health care power of attorney may be the most important documents in your estate plan. They might even be more important than the will you thought you originally came to see us about. The powers of an agent under your power of attorney can be critical to providing for your care and your estate.