What is a Prenup?

Prenuptial agreements are contracts made between two people before they get married (pre (before)-the-nuptials). These are private contracts made between two people and they generally concern things about their marriage; including the financial aspects of it. In Arizona, where we practice, prenups are enforceable as long as their terms do not violate good morals or the law and do not encourage divorce.

Prenuptial Agreements and Estate Planning.

Arizona is one of several states (there are nine in all: Wisconsin, Idaho, Texas, New Mexico, Louisiana, Arizona, Washington, Nevada and California) that are community property states. What this means is that property acquired during marriage is considered to belong to the “community” (the marriage). When a couple in a community property state gets divorced, the community property is divided equally between them. “Separate property” of one spouse (acquired before the marriage or thru inheritance, gift or devise during the marriage) remains that person’s separate property at the time of divorce.

When it comes to estate planning, community property states are unique in how they handle property on the death of one spouse. In a community property state like Arizona, you can only give away your separate property and half your marital property when you die. That means that if you make a will or trust leaving more than 50% of your marital property to someone when you die, the court will not honor your wishes. It will  not allow the transfer of more than your 50%. And, in every state except Georgia, you cannot disinherit your spouse.

Prenups Change the Marital Inheritance Game.

What prenuptial agreements do, is allow couples to change the inheritance rules. If, for example, you have children from a prior marriage, and your new spouse has his/her own assets and does not need yours, you can agree in a prenuptial agreement that all of your property will go to your children and your spouse will get nothing. Or, if you are part of family business that you were involved with long before you ever met your spouse, you can direct that your share of the family business goes to your children at your death and not to your spouse.

Prenups are Powerful and Enforceable.

It bears repeating that valid prenuptial agreements change the inheritance and community property laws. They are both powerful and enforceable estate planning tools. Prenuptial agreements override both community property and elective share law.

Which is why you should always consult with competent counsel if you are considering a prenup or are thinking of signing one.

If you are considering remarriage, it is very important that your estate planning documents are carefully drafted by knowledgeable trusts and estates counsel.

Work with a Trusts and Estates Attorney.

In our practice, we frequently work with blended families. We will sit down with you and go over all your concerns and answer all your questions. We offer FREE consultations. We have offices in Sedona, Arizona but we serve Verde Valley and all of Arizona. Simply call us at 928-282-1483 or contact us here.

Your will is one of the most important documents you will ever execute in your life. What are the chances you will mess it up if you write it yourself or use an online form? Big. Very big.

And what are the chances that anyone can fix any mistakes you made in your Will after you die? Zero.

So writing your own will is not a good idea.

A Critical Estate Planning Tool.

In estate planning, a lot depends on your will and on making sure that your will is correct and error-free. Your will distributes your property to your loved ones, of course, but it can also do much more. A will can:

• name a personal representative or executor to wrap up your estate
• name guardians for your children and their property
• provide instructions for trusts for your children or other young beneficiaries
• reduce conflict by making your intentions clear
• forgive debts, among other things.

All wills must comply with certain legal requirements in order to be valid, and the laws in each state vary as to what is required to make a valid will.

An experienced trusts and estates attorney can not only help you draft a will specific to your unique needs, but can make sure that it is error-free. This is important because errors in a will can render it invalid (in whole or in part) and can cost your estate a lot of time and money—either because they will cause fights among your beneficiaries (will contests) or because they may cause your entire estate to be probated.

Another reason why you should not write your will yourself —either by hand or with a form— is because you may need the advice of counsel. Every situation is unique. Some  people have monetary, property or relationship situations where they need legal, tax, or personal advice. You can’t get that from a form (or non-attorney source). Working with an attorney instead of trying to do-it-yourself can keep you from making costly mistakes.

Talk to Us First.

Before you write your own Arizona will, talk to us. We offer FREE consultations and we serve all of Arizona. We have offices in Sedona, Arizona. Connect with us on Facebook or Twitter  or send us an E-mail  to set up your free appointment today!

Why Valid Wills Are Important.

Your Last Will and Testament (“Will”) determines how your property is divided when you die and who gets what. Having a Will is one of the most important things you can do to protect your estate and your loved ones.

Having a Will is important for many reasons. The most critical one is that a Will helps your estate avoid probate. If you die without a Will, your estate will have to be probated and your property will pass through your state’s intestacy laws. Probate is a long and often expensive process.

Although a person’s Will also goes through probate, the process is a whole different animal. It is faster, cheaper and far less complicated because the probate judge has the Will to tell him/her what your wishes are and who gets what. Without a Will, the probate judge must make his or her own determinations.

The Formalities of a Valid Will.

But what exactly makes a Will valid?

In part, what makes a will valid depends on the laws of the state in which you live. Each state has its own legal requirements for what makes a valid will which is why you should consult with counsel in the state in which you live. However, most states have the same or similar requirements and most will accept a Will that was made in another state.

In addition to other formalities for making a Will (see below) you must be at least 18 years old and you must be “of sound mind.” Basically, that means that you must know the extent of your property, know that in making a Will you are giving instructions for disposing of that property, and you must know who would naturally benefit from your death (i.e., close family members).

Generally speaking, to be valid a Will must:

• Be a written document (meaning typed or printed);
• Be signed by the person making the Will (the “testator” or “testatrix”); and,
• It must be signed by two witnesses. The two witnesses must have been present when the maker of the will (the testator or testatrix) signed it and must have witnessed the Will, and they must also have witnessed each other sign the document.

While not all states recognize holographic (handwritten) wills, Arizona does. This does not mean, however, that holographic wills are a good idea. They are not. Because they are not drafted by trusts and estates counsel, handwritten wills almost always contain costly mistakes and errors and can often be rejected by the probate court which means it is the same as having no Will at all.

A Will that meets all the formalities ensures that your wishes will be carried out.

Your Most Important Document.

The importance of having a valid and enforceable will cannot be overemphasized. Your Will does not just pass on your property. It is how you leave a legacy to those you love the most. The best way to be certain that your estate plan documents will be correct, up-to-date, complete, and enforceable, is to meet with competent and experienced estate planning counsel.

A Trusts and Estates Lawyer Can Ensure That Your Will is Valid.

When you entrust your estate planning needs to competent counsel, you decide how you want your estate to be distributed and to whom. We Are Estate Planning Attorneys in Arizona. We have offices in Sedona and we serve Verde Valley as well as all of Arizona. We offer free consultations and we can help you with your estate planning needs. Contact us to set up your free appointment.

Why?

Because there simply are some jobs that are best left to the professionals. And doing your own estate plan is one of them.

Too Easy to Get Wrong. Impossible to Fix.

One of the main reasons why you should not attempt to draft your own estate documents (wills, trusts, etc.) is that it is too easy to make mistakes. And once made, it is impossible if not nearly impossible to fix them.

For example, all wills are required to comply with certain formalities. If you draft your own will and for whatever reason fail to meet every will formality, your will could be held to be invalid either in whole or in part. Meaning that the court could throw the whole thing out, or a certain bequest would not go to the person you wanted it to go to.

Mistakes in drafting can result in expensive and time-consuming probate (if your will is invalid) or expensive and time-consuming will contests (to prove it invalid). Either way, you won’t be around to explain or fix the problem; leaving your loved ones to shoulder the burden.

Your Estate Planning is Too Important to Not Have it Professionally Done.

Another reason why we do not recommend trying to do your own estate planning is because your estate plan is critical to the proper disbursement of your property and to the protection of your loved ones.

When you use online forms or non-attorney sources you cannot get the legal and/or tax advice that you may need to make good choices and informed decisions. As a result, you could make big mistakes that may result in your estate being swallowed up in taxes or unnecessary litigation.

Don’t Take Chances.

We cannot stress enough how important it is for you to have estate planning documents to protect yourself and your loved ones before the inevitable (your death) happens.

But equally important is the fact that you have these documents prepared by experienced trusts and estates counsel. If you have questions or need help putting an estate plan in place or updating the one you have, call us. We offer creative, affordable Will packages through our Legacy Estate Planning process. We have offices in Sedona, Arizona. We serve Verde Valley and all of Arizona. We offer free consultations and we can help you with your estate planning needs. E-mail us here or call 928-282-1483 to set up your free appointment.

1. Differences in Form and Purpose.

Your will (“Last Will and Testament”) is a legal document that states your final wishes and gives instructions about how to divide up your property when you die. It directs the manner in which you want your property distributed and to whom.

A trust, on the other hand, is a fiduciary arrangement that allows a third party, or trustee, to hold assets (money or property) on behalf of a beneficiary or beneficiaries (the person or persons for whose benefit the trust is made). Each state has its own laws governing the types of trusts permitted, how they are created and the laws that govern them. Which is why it is important that you consult with knowledgeable counsel.

2. Differences In When Each Comes Into Effect.

Unlike a trust, your Will only comes into being (i.e., is effective) after you die. This is why it is so important to make sure that your will is properly drafted; because once you are gone, it is impossible to change your will and next to impossible to fix any mistakes.

A trust, on the other hand, is effective as soon as you create it (and fund it with property or money).

While there are many differences between a will and a trust and what each can do, they are alike in that they are necessary and critical estate planning tools that everyone can use.

Want to Learn More?

We can help. We are experienced trusts and estates attorneys in Arizona. We offer free consultations, and we serve all of Arizona. Our offices are located in beautiful Sedona and we serve Verde Valley as well. We can help you provide and plan for your loved ones. Call us at 928-282-1483 or contact us here.

So here are some things to keep in mind when it comes to writing your will.

Wills Are Critical Documents.

Your will is one of the most important documents you will ever execute in your life. A well-drafted will provides for the orderly administration of your estate after your death (no matter how big or how small) and declares your final wishes. A well-drafted will ensures that your property goes to the people you want it to go to.

Your Will Decides Who Will Raise Your Minor Children.

Part of what you do when you draft a will is to nominate certain people to bring up your minor children should you die unexpectedly. It is absolutely critical that you are the one to do this. Because, should you die without a will, the court will appoint someone to raise your children in your absence.

Your Will Decides Who Will Carry Out Your Instructions.

Another important thing you do when you make a will is appoint a “personal representative” (or, “executor” in some states.) Your personal representative is the person who will carry out the instructions in your will. This is the person who will be responsible for gathering all your assets, distributing them to your heirs, and accounting for all the money.

So it is very important that you decide who that person should be. Again, if you should die intestate (without a will) the court will decide this for you.

When It Matters So Much, Don’t Take Chances.

An experienced trusts and estates attorney can not only help you draft a will specific to your unique needs, but can make sure that it is error-free. We offer FREE consultations and we serve all of Arizona. We have offices in Sedona, Arizona. Connect with us on Facebook or Twitter  or send us an E-mail  to set up your free appointment today!

Below are 3 Tips that will help you to avoid having your estate tied up in a will contest.

What is a Will Contest?

But before we get into how to avoid one, let us discuss what a will contest is.

A will contest is the legal process by which someone challenges the validity of a will.

To contest a will, the person contesting it must be someone who has an interest, like your spouse or heirs. (However, because state laws vary on who has standing to contest a will, you should consult counsel.) The person contesting the will must have legal grounds for believing that the will is invalid.

For example, perhaps they believe you were not of sound mind when you wrote your will. Or, someone unduly influenced you to leave all your money to your pet instead of your children. Or, the formalities of making the will were not complied with. There are many grounds for contesting a will and each state has its own rules concerning the specific requirements that must be met in order for a will to be valid, which is why it is important to consult competent estate counsel.

Tips for Avoiding a Will Contest.

Because of the undue time and expense that will contests cause (think, litigation; attorney’s fees; emotional drama and trauma) avoiding will contests is paramount. So here are 3 things you can do to ensure as much as you can, that your heirs do not contest your will.

1. Have Your Will Drafted by Competent, Experienced Trusts and Estates Counsel.

To us, this seems obvious. To you, it might appear self-serving. However, the number one thing you can do to avoid will contests or having an invalid will, is to have it properly drafted.

Handwritten wills (holographic wills) are almost always complete disasters and, while not invalid in Arizona, they are in other states. Do-it-yourself will forms and non-attorney drafted wills frequently leave out important aspects and requirements for valid wills and are susceptible to contests. (Keep in mind that non-attorneys cannot give you legal advice that would allow you to avoid making disastrous mistakes with your estate planning.)

2. Talk to Your Beneficiaries About Your Estate Plan.

Once you have an estate plan in place, you should talk to those most concerned in it. No, you don’t have to give them every detail of who you have left what to and why, but you do want to try to head off any problems (will contests) if you can. Often, if people know what to expect ahead of time (say, you have left more money to one child than another because you believe that child needs it more) it can prevent misunderstandings later.

3. Don’t Wait Until it’s Too Late!

Our final tip in this post is that you want to make your estate plan sooner than later. One of the most common grounds for contesting a will is that the testator or testatrix (maker of the will) was not of “sound mind” at the time the will was drafted. You want to make be in good health and not weak or vulnerable to the influence of others (caretakers etc.) when you make your will.

While you cannot control what your heirs will do when you are gone, following these tips will go a long way towards protecting your estate plan from a will contest.

We Are Here For You.  

If you want to avoid a will contest or are ready to get make your estate plan, call us. We are experienced trusts and estates attorneys. We offer free consultations. We have offices in Sedona, Arizona and we serve all of Arizona. Call us at 928-282-1483 or contact us here.  E-mail us or connect with us on Facebook , Twitter or LinkedIn.

Usually when we mention probate, we are talking about how to avoid it.

Today we thought we would give you a peek into the (dreaded) probate process.

What Is Probate?

Probate is the court-supervised process of distributing your assets to your heirs when you die. If you die leaving property (especially real estate) in your name, the only way to transfer ownership of it to your heirs is for a court to order the transfer through the probate process.

If you do not have a will or a trust when you die, then your entire estate will have to go through a formal court-supervised probate process to get distributed. In Arizona, if you have a will when you die, then it is possible to do an informal probate which simplifies the probate process.

What Does the Court Do in Probate?

The probate process usually begins when the deceased’s representative (in Arizona, usually called the “personal representative” elsewhere often called the “executor”) files a petition with the court to have the deceased’s estate administered. The process (which can take a year or longer to complete) ends when the court formally “closes” the estate.

There are a number of steps the court takes to probate an estate. In most states the court will take at least the following steps:

• Proving the validity of the will, if there is one.
• Choosing a personal representative or executor or representative for the estate;
• Totaling up all the assets;
• Paying all estate debts, estate taxes and costs of administration;
• Identifying all heirs or other family members;
• Distributing assets (if any) remaining after administration of the estate to the heirs under the will (if there is one) or under the intestacy statutes.

There may be other things to be done or that the probate court will do, depending on the state and the factual situation of the estate being probated. However, the list above should give you a fair idea of what goes on in the probate court.

Even the most simple and uncontested probate proceedings can take many months to a year to complete. If there are disputes or claims, it can take much longer.

Court procedures involve court costs (filings) and often involve attorneys, and all this leads to legal fees and costs. Which is why we so often talk about how and why to avoid probate.

Talk to an Estate Planning Attorney!

If you have questions about probate or how you can avoid probate, call us. We offer creative solutions to avoiding formal probate even with a simple, affordable will package through our Legacy Estate Planning process. We have offices in Sedona, Arizona. We serve Verde Valley and all of Arizona. We offer free consultations and we can help you with your estate planning needs. E-mail us here or call 928-282-1483 to set up your free appointment or connect with us on Facebook , Twitter or LinkedIn.

Here at Esser, Bradley & Khalsa, PLLC,  we encourage everyone to get a professionally-drafted will and to never die without a will (“intestate”).

But we have to admit, there are times when you might as well have no Will at all.

There are times, not often mind you, when having a will is useless. Which is why we always encourage our clients to review their estate planning documents, including their wills, every 2 years.

Do Not Let Your Will Get Stale.

Situations can arise where someone’s will was valid when they made it, but is no longer effective at the time the testator (maker of the will) dies.

For example, if your will leaves everything equally to Jane and Sue and stipulates that should Sue die before Jane everything goes to Jane, and visa versa, but does not say where the money goes if Jane and Sue die before you do, then if Jane and Sue predecease you, but you never updated your will, it is going to be invalid.

What this means is that your estate will no longer pass under your will, but instead will be distributed according to the intestacy laws. Which is exactly what happens when you have no will at all.

Or, let us say that you had your will (professionally) drafted and executed. Then years later you fell in love with someone. You meant to leave him (or her) everything, but you never got around to changing your will. If you were not married to this person at the time of your death, they would get nothing. Again, having a will that is outdated and does not do what you want it to is doing you no good here.

What all this means is that having a stale will is just as bad as having no will at all!

Be Sure to Review Your Will Regularly. 

Your dentist reminds you to floss, and a good trust and estates attorney will remind you to review your trusts and estate planning documents regularly and make sure you keep them up-to-date.

Estate Planning Attorneys in Arizona.

At Esser, Bradley and Khalsa, our estate planning attorneys will work with you during a FREE consultation to discuss your specific needs. Don’t wait! Contact us today to set up your free appointment.

One of the things you want to try to avoid when you die is having someone contest your Will. (The other thing is probate. But that is the subject of other posts.)

Why is that, you ask?

Because will contests embroil your estate and family members in bitter and often prolonged legal battles. They can tear families apart and drain your estate of a good portion (if not all) of the inheritance you wanted to leave to your heirs.

One way that people often try to avoid will contests is by having a “no contest” clause in their will.

But do they work?

What are No Contest Clauses?

A “no contest” clause in a will basically says that if anyone contests the will, that person will loose whatever inheritance was provided for him (or her) in the will.

Sounds like it should keep people from contesting the will, right?

Well, not really.

Do They Work Well?

There are several problems with “no contest” clauses, but the biggest one for those of us who live in Arizona is that the courts do not like them. Which means that no contest clauses rarely work in Arizona.

For example, if the will is invalid in some way, and the court finds that the person contesting it had a valid reason (“probable cause”) for contesting it, the court will not enforce the “no contest” clause in the will — even if the person ultimately loses.

That means that the clause you put in your will saying “if anyone contests this Will, they will be disinherited,” will just be ignored; and even if the person contesting your will was wrong, they can still inherit from you, as long as the court finds they had a good reason to contest your will in the first place.

On the other hand, there may be genuine reasons for you to include a “no contest” clause in your will.

So, what should you do?

Consult with experienced and knowledgeable estate planning counsel.

Because every person’s situation is unique to them, you cannot know whether having a “no contest” clause in your Will is right for you or not, unless you seek advice of counsel.

We Can Answer All Your Questions.

If you want to know whether including a “no contest” clause in your Will is right for you, call us. We offer free consultations, and we serve all of Arizona. Our offices are located in Sedona, Arizona and our practice focuses on trusts and estates law. We can answer all your questions and help you. Call us at 928-282-1483 or send us an e-mail.