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Arizona Estate Planning Questions & Answers
1 Answer | Asked in Estate Planning and Probate for Arizona on
Q: can an executor of a trust be removed if he has failed to inform the beneficiary when it became irrevocable 2 1/2 yrs

my uncle has yet to tell me anything about a trust my mother left me when she passed away almost 3 years ago I only know a little because of my brother telling me .I've asked my uncle about it and still nothing .I think he is trying to cause a hardship that way I would be inclined to sell my... Read more »

Gregory Christopher Poulos
Gregory Christopher Poulos
answered on Jun 17, 2022

When a person has a trust, it becomes irrevocable upon their death. The successor trustee of has a fiduciary and legal obligation to report to the beneficiaries of a trust.

At a minimum, assuming you are a beneficiary, you should have been provided with, at a minimum, a copy of the...
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1 Answer | Asked in Divorce, Estate Planning and Family Law for Arizona on
Q: My husband and I are residents of Arizona. What happens to our house during a divorce?

He solely purchased the house in 2007. We met in 2014. I had our oldest child in 2016. We married in 2017. He refinanced the house in 2018 or 2019 but didn't want to put me on the home loan even though my credit score is consistently in the upper 830s - 840s. Our youngest was born in 2018.... Read more »

Stephen M Vincent
Stephen M Vincent
answered on Jun 13, 2022

The house belongs to him. A.R.S. 25-213(A) reads, "A spouse's real and personal property that is owned by that spouse before marriage ... and the increase, rents, issues and profits of that property, is the separate property of that spouse." As he owned before the marriage and never... Read more »

1 Answer | Asked in Estate Planning and Elder Law for Arizona on
Q: Revocable living trust, dad past. Can she not read the will to the boys now, time limit on filing to make it irrevocabl.

Plus he has a special clause for if one of the boys get disabled the trust is to help him and he does not get his 20%. Pays for other items medicare does not pay.

David Gerszewski
David Gerszewski
answered on Jun 2, 2022

I would recommend you talk to an attorney review the Trust. Trusts with special needs considerations are usually more complex than a regular trust. It is very likely the trust may only became irrevocable after the spouse passes away, not after the first person passes away. An attorney will need to... Read more »

1 Answer | Asked in Divorce, Estate Planning and Tax Law for Arizona on
Q: Can a Trust decide its distributions aren’t community property even when taxed as non passive K1 income & filed jointly?

In the case of divorce - Trust 1, which has a clause that names the beneficiary as spouse A & states distributions are not community property, owns an S corp (an LLC). The S corp paid distributions to spouse A, which were claimed jointly as non passive income in a community property state (AZ).... Read more »

Ilene L McCauley
Ilene L McCauley
answered on May 25, 2022

Unfortunately, you are asking a very difficult question. The answers hinge on the documents currently in place as well as the status of the divorce. The attorney will need to see if there is premarital agreement in place. If so, that agreement may control. We also need to look at the S... Read more »

2 Answers | Asked in Estate Planning and Probate for Arizona on
Q: A decedent passed in September 2021. Their life partner is not allowing and desendants on the property for willed items.

My father passed away September 2021. He left several items in his will to me, and left many items unresolved in his estate. He lived on property owned by his 10 year long life partner (unmarried). The partner is not allowing anyone on site nor is she answering any requests for specific heavily... Read more »

Gregory Christopher Poulos
Gregory Christopher Poulos
answered on May 15, 2022

Unfortunately this happens too often. The life partner probably feels some entitlement and does not want to deal with the fact that she (or he) has no legal right to your father's property. It is concerning that this has been allowed to linger since September, but I your recommend drafting a... Read more »

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1 Answer | Asked in Estate Planning for Arizona on
Q: how long does a lawyer or the firm retain copies of family trust documents
Nina Whitehurst
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Nina Whitehurst
answered on Apr 27, 2022

Retention periods vary from firm to firm. You would have to ask the particular firm what their retention period is.

retention periods vary from firm to firm. You would havr to

1 Answer | Asked in Estate Planning for Arizona on
Q: Can you get an EIN for a Revocable Living Trust prior to the Trustee's death.

I am the Successor Trustee for a relative's Revocable Living Trust. Can I get either a Tax ID Number (TIN) or Employer ID Number (EIN) for the Trust prior to the Trustor's death? The purpose being to smooth things out a little after the Trustor's passing and not for taxes prior to... Read more »

Ilene L McCauley
Ilene L McCauley
answered on Apr 21, 2022

Thank you for your question. EIN and TIN are the same and are applied for on the same application.

The answer is you CAN get an EIN (Employer Identification Number) or TIN (Tax Identification Number) for a Trust, but it generally is not a good idea. When the Trustor is alive, the Trust...
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1 Answer | Asked in Estate Planning for Arizona on
Q: In Arizona, does creating a new General Durable Power of Attorney (PoA) cause previous PoAs to be revoked or invalid?

I need to make changes to my Arizona General Durable Power of Attorney (PoA). I believe I need to create a whole new PoA rather than trying to amend the original PoA.

When I create the new PoA, does the original PoA automatically become revoked & invalid? Or, do I need to also to... Read more »

Nina Whitehurst
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Nina Whitehurst
answered on Apr 19, 2022

You can state in the new power of attorney that it revoked all previous power of attorney. But you will also need to provide notice of revocation along with the new power of attorney to everyone who has the old one. If you have recorded the old power of attorney then you will need to either record... Read more »

1 Answer | Asked in Estate Planning for Arizona on
Q: Mom & husband were married. Their house was in a trust. He passed away. Mom lived there a couple more years alone.

Trust stated that upon sale of house, she receive 50% of the proceeds and 4 adult kids (2 from his previous marriage and 2 from hers) receive the other 50% of the proceeds divided evenly. She sold the house and is still living. Is this considered inheritance for the kids?

Ilene L McCauley
Ilene L McCauley
answered on Apr 4, 2022

Based upon the information you provided, the distribution is an inheritance to all parties.

However, there is more information you need to know. Even though the asset is an inheritance, there may be capital gains tax which must be paid upon the sale of the house. The house got a new...
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1 Answer | Asked in Estate Planning and Probate for Arizona on
Q: What happens if the Maricopa County Public Fiduciary failed at locating proper next of kin or an honorable discharge?

My husband was found dead from suicide in 2005 and was handed over to the public fiduciary office as an "indigent" but they failed to figure out that he was a veteran with an honorable discharge or to locate me in the same county, or his father who was listed in the phone book in AZ!... Read more »

Andre L. Pennington
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Andre L. Pennington
answered on Mar 26, 2022

In short, it depends on the steps taken by the fiduciary. I recommend contacting an experienced probate attorney to discuss.

1 Answer | Asked in Estate Planning and Probate for Arizona on
Q: My mom had executor/probate powers over her mother's estate, my mom died before finishing it. Am I responsible for it?

My grandmother passed away, leaving behind my mother and her sister. My mother is/was the executor/probate/representative for grandmother. My mother passed away in January and I am now her executor/responsible person. Am I in charge of my grandmother's estate now too, or does that fall to my... Read more »

Andre L. Pennington
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Andre L. Pennington
answered on Mar 25, 2022

Sorry for your losses ... it will go by the order in the Will or if there is no will it sounds like your Aunt will need to petition the court to replace your mother as personal representative. It may be helpful to contact an experienced probate attorney to help guide through the process. Good... Read more »

2 Answers | Asked in Estate Planning and Real Estate Law for Arizona on
Q: I filed TOD deed, but now want to transfer the property into my trust. Does quitclaiming into the trust cancel the TOD?

I am in Arizona. I am the sole owner of the property. Do I need to file a deed revocation, revoking the beneficiary deed first, or will the quitclaim deed be sufficient to maintain chain of title?

Gregory Christopher Poulos
Gregory Christopher Poulos
answered on Mar 17, 2022

The proper way to do this is to record a revocation of the beneficiary deed and then record a deed from you to the trust. Quitclaim deeds are an invitation to potential disasters.

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1 Answer | Asked in Estate Planning for Arizona on
Q: In Arizona - after a death is there a certain timeframe the legal process needs to be started within?

For example - from the time the executor of the estate gets the will or from the date of death - any processes have a time limit - forming the estate, any taxes that need to be handled etc.. is it reasonable to wait 6+ months to begin any of this process

Douglas Price
Douglas Price
answered on Mar 14, 2022

Yes, there is a time limit and it is generally 2 years from date of death. A probate should be filed before this time to be "timely" although a "tardy" probate can be filed after 2 years with "restricted" letters. Generally, it is better to act sooner rather than... Read more »

1 Answer | Asked in Consumer Law, Estate Planning, Foreclosure and Real Estate Law for Arizona on
Q: Law or protection for deceased's home loan assumption by a Joint Tenant owner not not already listed on the mortgage?

Father-in-Law helped his daughter by buying a trailer home for her. The trailer is in Arizona where he also lives (but not in the trailer with her). She has lived in the trailer since 2000 when her Dad purchased it.

Daughter was added to the deed as Joint Tenant (JTWROS) couple years... Read more »

Nina Whitehurst
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Nina Whitehurst
answered on Mar 2, 2022

You are wise to be thinking about this proactively. The federal law that prohibits lenders from calling the loan due when the borrower dies applies to traditional homes and also "residential manufactured homes", so the answer depends on whether the home is a "residential manufactured... Read more »

1 Answer | Asked in Estate Planning for Arizona on
Q: What are the requirements for needing to file tax returns for a Revocable Living Trust and Probatable Estate in Arizona?

If a deceased person had both a Revocable Living Trust as well as Probatable assets, what are the requirements for Federal and Arizona State tax filing?

If the trust & estate are both settled in the same year the person dies, do the trust & estate need to file taxes?

Is... Read more »

Ilene L McCauley
Ilene L McCauley
answered on Mar 1, 2022

I am sorry for your loss. These are excellent questions. I will give you the general rules. Then I recommend you see an accountant who knows about filing income tax returns for trusts and for probate estates.

Legally a Probate Estate and a Trust whose Trustmaker is deceased (trust...
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1 Answer | Asked in Estate Planning and Probate for Arizona on
Q: How much does a probate lawyer cost? How are they paid beginning or after? Is there any pro bono probate lawyers can hel

I need information on my parents who passed away and sister who is controlling the will and it's not allowing me any information on it of their state of their will of their house of any funds or any anything for that matter. What's the best way how to handle this matter?

Ilene L McCauley
Ilene L McCauley
answered on Nov 29, 2021

The State Bar of Arizona has a service where lawyers volunteer to work pro bono. or with out cost. Contact the State Bar directly. Someone will be able to help you.

FYI. The State Bar of Arizona may still be on lockdown. If you don't hear from them within a reasonable amount of...
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1 Answer | Asked in Criminal Law, Divorce, Estate Planning and Domestic Violence for Arizona on
Q: My wife and i had a falling out after 20 years

My wife and I separated in 2018. I couldnt take the abuse from her anymore. In 2019 when driving down the highway she throat punched me and was hitting me one handed while doing 80 mph so I ripped the ebrake in total fear for my life. She was arrested on assault per domestic violence. We owned 3... Read more »

Rich J. Peters
Rich J. Peters
answered on Nov 6, 2021

So much to digest there. However, the overall concept of proof is an easy answer. What proof do you have? Pictures? Text messages? Emails? Eyewitnesses? There can obviously be even other methods of proof but I would need to know the details of each event.

Do you have a pending...
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1 Answer | Asked in Estate Planning and Elder Law for Arizona on
Q: If your lawyer passes what happens to all his files do they go to someone else or do they get thrown out
Nina Whitehurst
PREMIUM
Nina Whitehurst
answered on Oct 26, 2021

Normally the attorney will have designated another attorney to take over his files when he passes. If not, then a court will usually get involved to appoint an attorney to take over the files. The designated attorney takes custody of the files and goes through them and does his best to return all... Read more »

1 Answer | Asked in Estate Planning for Arizona on
Q: Am I considered the issue in the following statement?

My father was deceased as this Trust was written, he was the 3rd child of the Grantors', is he meant by the term issue?

Upon the death of both of the Grantors, the Trustee shall pay and distribute the

trust estate at that time remaining to the Grantors' issue, Sandra xyxy... Read more »

Ilene L McCauley
Ilene L McCauley
answered on Oct 11, 2021

Thanks so much for the question.

Unfortunately, trusts are complicated documents and the answer can probably be found in the trust. The terms of the Trust will control, not necessarily the laws about issue per stirpes.

Is your father a brother to Sandra and Patricia? Is he...
Read more »

1 Answer | Asked in Estate Planning, Family Law and Real Estate Law for Arizona on
Q: A deed to a house was divided by the two owners. If one of them dies and can the new owner claim possession?

My father and his wife own a home. They do not have children together, he has 2 from a previous marriage. His kids have the house deed to his half, and one of her nephews has the house deed to her half. If the wife dies before my father, can her nephew claim possession to his half while my father... Read more »

Mike Branum
Mike Branum
answered on Sep 30, 2021

The answer will depend on whether the deed created a tenancy in common, a joint tenancy, or a joint tenancy with right to survivorship. You should obtain a copy of the deed which transferred the interests and consult with a real estate attorney to determine what rights each party holds.

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