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  Wills, Advance Directives, Trusts and Probate Estates
GENERAL INFORMATION
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AFTER AN ACCIDENT
 
 
 
 
Wayne Howell, Esq.
623-328-8567
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Everyone needs a will. Just as in the movies, your will is your last opportunity to have your say, protect your minor children and provide for the people you care about. The primary point of your will, if you have minor children, is to name the person that you want to have take your place in the role of parent. The other point of your will is to wrap up your affairs and distribute your property. If you leave these decisions unmade, someone else will make them for you.

But it is a hassle and the cost may be prohibitive. . . . No, not really.

We have made it both simple and affordable to make a will that expresses your desires, and to issue the advance directives that protect you both during and at the end of your life.

Here is the deal: Download this form.  Provide the information requested and send it in with your payment. Payment by money order or bank check results in a one week turnaround; payment by personal check results in a two week turnaround.

This is what you get: A Last Will and Testament, customized to your instruction, printed on superheavyweight 100% cotton with a cotton envelope and a watermarked copy for your records . . . Plus, all the advance directives you may need: A Durable Healthcare Power of Attorney with Living Will, a Mental Healthcare Power of Attorney and a Prehospital Medical Care Directive – also known as a Do Not Resuscitate or DNR order.  You also get a General Financial Power of Attorney, to use right away or in the event you become disabled.

This is the Cost: $300.00 for the Basic Will Package, flat fee, payable in advance. That is all you need to spend to get what you really need.  For two people getting wills at the same time, the fee is discounted to $500 for both. Simply fill out a will information form for each person wanting a will and mail in with your check.

If you want a higher level of service: You may also choose an Upgraded Will Package that includes a consultation with an attorney, either before or after the documents are created, to explain and discuss all your possible choices, both on the will and on the advance directives. If you change any of your decisions and need the documents to be revised and reprinted, this is included. The cost for this Upgraded Will Package is $500.00. For two people getting wills at the same time, the fee is discounted to $800 for both.

Explanation of Advance Directives

 "Advance Directives" is a group term for the four documents that protect you in the event you are incapacitated, and deal with your concerns at the end of your life.

The Healthcare Power of Attorney identifies the person ("Agent") you trust to make healthcare decisions for you in the event you become incapacitated – that is, either unable to make your own healthcare decisions, or unable to communicate your decisions to others. It communicates the decisions you make as to what powers you do and do not grant your agent, your preferences regarding an autopsy, organ and tissue donation and final disposition of your body.

The Living Will works with the Healthcare Power of Attorney to clarify your choices at the end of your life – what life-sustaining treatment you want depending on your condition.

The Prehospital Medical Care Directive – also known as a Do Not Resuscitate or DNR order. This is for when you know that you are at the end of your life and have made the decision that if your heart or breathing stops, you do not want EMTs or medical personnel to take steps to get your heart or lungs working again.

The Mental Healthcare Power of Attorney – This concerns the one power that is not granted by the general Healthcare Power of Attorney. If you become mentally incapacitated due to accident, illness or substance abuse, you may need to be cared for in a "level 1" mental health facility – that is, a locked, twenty-four hour per day supervised environment. A psychiatrist or psychologist would have to examine you to determine whether you are incapacitated. The Mental Healthcare Power of Attorney is where you identify the person you trust to get you this care if you are unable to make these decisions for yourself.

The Arizona Attorney General's Office has these forms available online to download and fill out on your own, if you wish.  That resource is located here.

The Financial, or General, Power of Attorney – In Arizona, Powers of Attorney are split into three types: Healthcare, Mental Healthcare and Financial. All are included in our Will package and all are available free through the State.

In the past, the Maricopa County Superior Court split Financial Powers of Attorney into those that took effect immediately and those thate took effect only when/if the signer became disabled. Those forms, because they required the signer to make many choices, were by their nature confusing. The current Maricopa County Superior Court form simply chooses whether the Power of Attorney is temporary or Durable(until the signer dies or revokes the Power).

The Superior Court in Maricopa County has financial power of attorney forms and instructions available for download.  That resource is located here.

Our Will package now uses a single General Financial Power of Attorney form that lets the signer choose whether the Power is Temporary or Durable, and if Durable, whether it takes effect immediately or only if the signer is deemed(by their doctor) to be incapacitated. Every choice has an explanation to make it easily understandable.

 
About Trusts

Simply put, a Trust is a tool to do the same things you do in a Will, if your needs are more complicated, you have a lot of money, or you just want one.

A Trust can be viewed as a cross between an artificial person and a company, with another person, the Trustee, running things. Many families whose needs are simple enough for just a Will set up a Living Trust, with names like the “John Doe Living Trust” or “The Smith Family Trust”.

There are pitfalls and problems that come with trusts. The biggest is that after setting up the trust, many people fail to follow through and move their assets into the trust – without assets, the trust is no more than a boring scrapbook. Some trusts are required to file tax returns and pay income taxes. What happens when the pool of likely Trustees dies off and you just want to distribute what you have? What happens when you no longer want to distribute your assets the way you did decades ago when you set up the Trust? What happens when your assets dwindle because you were fortunate to have a long life, and now you have this “Thing” that keeps confusing you and getting in the way. What seems like a good idea when you are forty can become a burden around your neck at eighty.

Most often when we do Wills for people with Living Trusts, we end up transferring the property out of the Trust and back to the actual people, and then we close out the Trust if desired.

When should you have us set up a Living Trust for you?

One really good reason to set up a Living Trust is if you have property such as real estate and vehicles located in another state. Without a Trust you might have to set up multiple probates, which can be expensive and burdensome.

If you have a lot of different items of property that would make administering your Probate Estate very complicated and burdensome for the person you pick as your Personal Representative, you might want to put them all in a Trust to make things easier.  If your property is already in a Trust, it doesn't have to be found and gathered when you die.

The Difference to You between us doing a Will or Wills and Setting up a Trust

We set up our Will service to be as quick and as inexpensive as possible – as inexpensive as $300 for one person or $500 for two people, doing everything by mail. Each person gets a Will consisting of ten or so pages, plus separate documents for their advance directives. It is up to you to execute your will with witnesses and sign your Powers of Attorney in front of a Notary.

Our Trust service takes somewhat the opposite approach. It will cost more, largely because it requires us to spend more time with you and may require the additional time and expense of transferring property and recording deeds. We will set up the Trust so that it holds your property, defines what the Trustee will do, provides for Successor Trustees and should not need to be changed down the road. We will set up your Will(s) to take over when you die and tell your Personal Representative and Trustee how a to distribute your property.

The idea is that it is more time-consuming and expensive to change the trust, while we can change the Wills we prepare for you quickly and inexpensively – you can cut out the cousin you never really liked, and provide for the angel that always looked in on you and took care of you when you were sick. You end up with an organized binder containing everything that will be needed when the time comes.

Probate

Probate is the procedure to distribute your property that is not in a Trust, is not the subject of a “Right of Survivorship” or Beneficiary deed(Real Estate), and is not covered by some kind of “Pay on Death” or Beneficiary provision(Insurance policies, bank and brokerage accounts).

If property is already in a Trust, it isn’t yours and isn’t subject to probate. If your home has a joint ownership deed with right of survivorship, it automatically goes to the survivor. If you listed a Beneficiary on your financial accounts, ownership automatically goes to the beneficiary.

There are always procedures involved, and exceptions resulting from debts to creditors and disputes between heirs, but this is the general idea.

Three Types of Probate
Small Estate Transfer. This applies when all the decedent’s personal property is worth $75,000 or less, or the decedent’s real estate is worth $100,000 or less, and only one person will take either the real estate or personal property. This is done with an Affidavit. The forms and instructions are located on the Maricopa County Superior Court’s website; you can click here.

Informal Probate. This is most common. Informal Probate applies when the estate issues can be viewed as relatively simple – The will is obviously valid and no one disputes it, no one is disputing the appointment of a Personal Representative, it is clear who the heirs are, there are no minors involved, the estate has enough assets to pay debts – in short, when no disputes or stumbling blocks are anticipated that would require a judge to make rulings. If you have an attorney help you, you can expect the cost to be significantly less than if a Formal Probate were required. You can proceed without an attorney if you are an organized person and are willing to be meticulous in what you do – making sure you understand each step and keeping precise records. The Maricopa County Superior Court’s website has all the forms and instructions you will need; click here.

• Formal Probate. This is exactly what it sounds like. Formal Probate is for when there are problems, such as:
--Is this Will valid? Which of these three Wills should apply?
--Why should he get to be Personal Representative? Do we trust him?
--What do you mean I don’t get the house? The Will says I get the house.
--Who knew Aunt Jane had so many bills? We’ll end up with nothing.
--Cousin Louie? Who the Hell is Cousin Louie?

. . . and so on. Someone is bound to end up unhappy, and the Court will have to rule on issues and referee disputes. For this, you need a lawyer. You start off with one person petitioning to admit the Will and be the Personal Representative, give both actual and legal Notice, and the fun starts from there. You know that in the end, everything will get worked out, because it must get worked out – but you expect arguments that must be addressed and that will result in legal fees.
 
                                                 
   

Wills, Advance Directives, Trusts, Probate Estates