INTRODUCTION
Estate
Planning - Who Needs It?
Your
Estate
Probate Assets vs.
Non-Probate Assets
Community Property vs. Separate
Property
Basic Estate Plan
Last Will and Testament
Advantages and Disadvantages to a Will
Durable Powers of Attorney (Financial and Medical)
Declaration (Living
Will)
Burial/Cremation
Organ
Donation
Trusts
DISPOSITION OF PROPERTY UPON
DEATH
ESTATE PLANNING FACTS AND
QUESTIONS (FAQ)
Introduction
When
we talk about estate planning, most people think about Wills and
making decisions about who gets what at our death. Although
these are important, estate planning should address much
more. What about our health and welfare during our lifetime,
and what about the quality of life of our families during our
lifetime?
Estate Planning – Who Needs It?
Incapacity and death do not discriminate on the basis of age,
race, sex, religion or marital status. Therefore, estate
planning is appropriate for any adult who wants to have a
voice in matters such as:
-
who will make medical and financial decisions for you while
you are living and unable to do so yourself
-
who will manage the assets of your estate and how
-
who will raise your children
Absent a valid estate plan, the State will make these decisions
for you.
Estate planning is peace of mind for you and for your loved
ones.
Your Estate
Your estate is comprised
of probate and non-probate assets and consists of one-half of
community property and all of your separate property.
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Probate vs. Non-Probate Assets
"Probate" Assets are
assets which you own and which will pass by a Will or intestacy
when you die. Usual examples are real estate, stocks, cars and
other so-called "hard" assets.
"Non-Probate" Assets are assets which pass by contract or
beneficiary designation on death, and are not governed by your
Will. Usual examples are life insurance, retirement plans and
IRAs, and assets which are held in "joint tenancy with right of
survivorship ", “community property with right of survivorship”
or in a living trust.
For tax purposes, your estate consists of
both probate and non-probate assets.
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Community Property vs. Separate
Property
Arizona is a community property state. This means that all
property accumulated during a marriage is presumed to be
community property, and must be proved to be separate property.
Separate property consists of assets owned before marriage, and
assets acquired by gift or inheritance or with assets which were
themselves separate property.
Your estate consists of one-half of community property
and all of your separate property. It does not matter whether
the community property was held in one spouse's name only. It
is still divided one-half each on death.
Although community property is owned one-half by each spouse,
during the marriage the spouse in whose name the property is
held has the exclusive management rights over the property.
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Basic Estate Plan
A basic estate plan has several elements, including the
following:
-
Last Will and Testament
A Will is the only place you can nominate a personal
representative (executor) to administer your estate,
nominate guardians/conservators for minors/incapacitated
adults, and specifically disinherit an heir to your estate.
A Will can also address unique circumstances such as blended
families. Without a Will, children from a prior marriage
are entitled to ˝ of their deceased parents separate
property and all of their deceased parents ˝ of the
community property.
ARS §14-2102.
This can result in serious unintended consequences for the
surviving spouse - including homelessness.
Without a Will, Arizona intestate law will control these and
other elections regarding your estate.
Some of the
advantages to a will are that you
can
-
designate how much and to whom property
will be distributed
-
leave property in equal or varying
amounts (based on need or affection)
-
nominate a guardian and/or conservator
for minors/incapacitated adults
-
nominate a personal representative to
administer your estate
Some of the
disadvantages to a will are
-
equity in real property over $75,000
will require the Will to be probated
-
equity in all personal property with a
combined value over $50,000 will require the Will to be probated
-
it does not eliminate the need for
transfer of property
-
loss of confidentiality - majority of
the documents are open to the public
-
Durable Powers of Attorney (Financial and Medical)
Durable Powers of Attorney are one of the least expensive
elements of an estate plan, but can result in the
expenditure of thousands of dollars if not done.
Spouses do not have automatic authority to handle all
medical and financial decisions on behalf of an
incapacitated spouse and often are required to seek court
appointment as guardian of their spouse and, even more
often, conservator of their spouses estate (spouses ˝ of the
community property and all of their separate property).
Absentee, incorrectly drafted and outdated medical and
financial powers of attorney are creating an influx of
guardianship and conservatorship proceedings to be initiated
in our courts. These proceedings are very expensive
(routinely in the thousands), time consuming and put an
enormous financial and emotional burden on an already
stretched family.
-
Declaration (Living
Will)
If you are of estate planning age (18 or older), then you
likely are familiar with some of the landmark cases and
decisions involving the right to due such as
Karen Quinlan,
Nancy Cruzan, and, even
more recently,
Terry Schiavo.
These cases bring sharp reality to the need for a Living
Will (Declaration) stating whether you do or do not want to
be kept alive by artificial means in the event you are in a
terminal, non-recoverable condition as determined by one or
more physicians (unlike Durable Medical Powers of Attorney
which are intended to be used in the event you are in a
non-terminal, recoverable condition). This document speaks
for you when you can not and relieves family and other loved
ones from the burden of making this very difficult decision
for you.
As of September 1, 2008, no one,
including a spouse or parent, may withdraw the
artificial administration of food or fluid from a patient
unless they are a duly appointed agent or by court order.
HB 2823.
-
Burial/Cremation Instructions