Setting up a Living Trust allows your heirs to AVOID PROBATE entirely (unlike a Last Will and Testament, which always gets probated), on assets you transfer into your Trust (thinks things that have title documents: your house, any real estate, land, vehicles, bank accounts, etc). A Living Trust will bypass probate, avoid those court costs, and allow your loved ones to celebrate your life rather than get tied up in lengthy and costly litigation over who gets what and when. Talk to us about the differences and advantages or disadvantages to creating a Living Trust and/or a Last Will and Testament. We will always prepare a Pour-over Last Will and Testament at the same time as the Trust, just in case you forget to move something into the Trust, as a catch-all. So you don’t need a Trust if you have a Last Will, but you DO need a (Pour-over) Last Will if you have a Trust. Make sense?

Certification of Trust

We will prepare this when we draft your Trust.  It’s a short (just a few pages) recap of your Trust, naming you as Trustee, your Successor Trustee/s, your Beneficiaries, etc.  When the bank, or loan officer, or title company, etc., asks you to see your Trust, you give them this.  You don’t give them your full Trust document. This will get notarized, and recorded if you Deed some piece of real estate into the Trust.

A Last Will and Testament dictates what happens to your assets when you die, and naming who will become guardian of your minor children.

Having a Last Will and Testament is an absolute necessity, to ensure that your assets are distributed to your heirs the way you desire. If you have no Will, the state of Arizona writes one for you, according to statute, and your assets may not be distributed in the way you would have wanted them to be. All Wills get probated (Trusts do not).

A Living Will addresses your wishes for your medical directives and final arrangements. Do you agree to an autopsy? Do you want to be cremated or buried? Where? Do you want to donate organs? If you are determined to be in a state from which you will not come back, by a physician, (think vegetative state, permanent coma), do you want your loved ones to do everything they can to keep your body alive, or do you want them to pull the theoretical plug? If in this state, do you want to just be kept comfortable (think morphine) or do you want your loved ones to have artificial food and water fed to you through a feeding tube, and to allow procedures like CPR and electric shock to keep your body alive?

Terri Schiavo, at 41 years old, had a heart attack, and was in a persistent vegetative state for over 15 years because her husband and her parents did not agree on how to move forward.  The doctors said her condition was irreversible. Her husband wanted to put an end to the life-sustaining measures being taken to keep her body alive, because Terri had once told her husband “I don’t want to be kept alive on a machine.” But she never wrote it down. Her parents did not agree, and Terri had not executed a Living Will.  The parties went to court for years, and all 30 legal opinions supported the husband’s wish to put an end to the life-sustaining measures. Finally, after 15 years of being kept alive by artificial means, Terri was taken off of life support.

Make your own decision NOW.  A Living Will allows you to do that.

When we create your Trust and/or Will, we will draft a Durable/Financial Power of Attorney (POA) for you at the same time. This POA is effective immediately and allows you to name another person (or more than one) to stand in your shoes and help run your day to day life if you are unavailable, or incapacitated. They can pay your bills, call the utility company for any reason, upgrade your Netflix account, do your banking …. Any of the things you would do if you were available.

A Special/Specific Power of Attorney allows a person to step into your shoes to act on a “specific” piece of real estate.  Meaning, not on matters regarding your day to day life like the above.  But they can sign the papers to sell your house, or buy a house, for you while you are out of town.  Their powers are “specific” to the property named in the POA. Typically a Durable POA is not strong enough for someone to stand in your shoes  and sell your property, you need this other kind. We can create this document for you, in the event you are out of town, or out of the country, while you are trying to buy or sell a home.

A Medical Power of Attorney  names one person who can make a decision regarding your medical needs while you are incapacitated.  They can’t run your day to day like the Durable POA allows, but they can make a decision regarding things the doctor needs to know.  They can allow the plug to get pulled.  They can allow an operation …. Things that sometimes the doc needs to know right away.  The state only allows for one (1) Medical POA because we don’t want two of them arguing over if the plug should get pulled or not.  But you can (and should) name an alternate, I case the doc can’t get a hold of your first choice and a decision needs to be made.

Mental Health Power of Attorney

A mental Health Power of Attorney allows a person to designate an agent for matters relating to his/her mental health care.  Like a Medical POA, only one agent can be named, although naming an alternate agent (who stands in if the first named agent is unable or unwilling to serve) is standard form. This POA allows the agent to make decisions that may include medications, admission to a mental health treatment center, and other mental health care decisions that the agent believes to be in the person’s best interest.

Some primary kinds of deeds:

Warranty Deed (moves the property ownership from one entity/person to another, with lots of promises that the title and chain of title is clean);

Special Warranty Deed (basically the same as above but the seller only makes those promises for the time period that he/she owned the home, no guarantees from the time before they owned it);

Quitclaim Deed (moves the property from one entity/person to another, without any promises regarding the state of the title);

Disclaimer Deed (basically removes a spouse and makes the real estate your sole and separate property – used in divorce, but also in many other occasions);

Beneficiary Deed (lets your beneficiaries get your real estate when you die without probate – a cheap man’s Will for your real estate. New to AZ in 2021 and an awesome way to avoid probate for your beneficiaries);

Sheriff’s Deed (What the new Owner gets when your house gets foreclosed on, when you default on your mortgage/deed of trust;

Treasurer’s Deed (What the new Owner gets when you don’t pay your real estate taxes, and they buy your tax lien and foreclose on your house);

Trustee Deed (What the new Owner gets when you don’t pay your lender and your lender forecloses.

We can explain and prepare and execute all of these. We can record them the same day.  If you form a Living Trust, it is likely you will need to deed at least one piece of real estate into your Trust, using a warranty or quitclaim deed.

Why is this listed in the estate planning section? Because oftentimes, when we prepare an estate plan, there is a non-owner occupied property involved, like a rental property, or an investment property, and the best way to own a rental is to deed it into a LLC or other entity, rather than keeping it in your personal name, to minimize your personal liability.

Creating at Operating Agreement for your entity is always a good idea when you have multiple members, but is not required in the state of Arizona.  We can draft an Operating Agreement for you when we form your entity.

Any non-owner occupied real estate you own should be titled an LLC or other entity, to protect your personal liability.  Protect your family from creditors, and from lawsuits, by setting up an LLC for your rentals or other income properties.

We are oftentimes retained to draft letters of opinion for clients on a wide range of real estate issues.  We can review all real estate contract documents, we can work with buyers of new construction on issues that may arise, we can help with the process when there is a probate involved and the executor is selling the property. We can get involved if a party, or a title company, refuses to refund a buyer’s earnest funds.  We have been retained many times to write expert letters of opinion in active real estate litigation (ongoing court cases). Whatever the real estate matter, we will fight for our client’s rights.

Some common real estate matters we get involved with include drafting and recording deeds (moving title to/from a person’s individual name/s into or out of a Trust, or into an entity, setting up a LLC or other entity, or representing a landlord or tenant in issues related to a lease, or eviction. Some of these topics are outlined in more detail below.