Trust FAQs

Well, first and foremost, I offer a free initial consultation that usually lasts somewhere between half an hour and an hour. That’s a good way to come in and find out what a trust is all about, what wills are about, what powers of attorneys are about, both general durable powers of attorney, which are financial and business type documents, as well as healthcare powers of attorney, which are for healthcare and making that pull the plug decision. Those are things for somebody that doesn’t understand it, it’s a real good way to, you get a free half an hour to an hour of an attorney’s time to answer your questions, have these things explained to you, and put you in a position to where you really understand a whole lot better about what a conservatorship is and why you don’t want to leave it to your kids in a conservatorship.. Would you like your kid at age 18 to take their share, all of their inheritance and do whatever they wanted with it? I think in today’s world, 18 year olds are generally not thought of as competent to handle large sums of money. Even if you were only leaving your son or daughter $40,000 or $50,000, would you want them to have it at age 18 all at once? Or would you rather have somebody manage it for them until they got a little older and use it for their health, welfare and education. I generally specify that education includes college, graduate school, or if they feel like it, trade school.

Essentially, Estate Planning is a trust, it’s a pour‑over will, it’s a general durable power of attorney, and it’s a healthcare power of attorney. Those are the documents that are usually encompassed by the concept of an estate plan.

Yes. Again, there can be other things down the road. For higher net worth individuals, there’s a different type of trust that can be used that would double what is now $5,250,000 that can be passed tax free, so that each member of the marriage could leave that same amount, that $5,250,000. Now you’ve got $10.5 million that you can pass on to your kids tax free. So, depending on your financial situation, there are other things that can be done. There are various and sundry other types of estate planning things that can be done that the average person doesn’t need. There are things called irrevocable life insurance trusts or ILITs. But those are things that most people don’t need. There are some people who can use them.

There’s a lot of things that can go into it, but for the average person having a revocable living trust, which again, revocable means you can revoke it later, but you can also, and this is more important for most people, you can amend it. That gives you flexibility that as things change over time, whether it’s the age of distribution.

As an example, if you started out and you prepared a trust and your kids were three and five years old. It’s going to be distributed at 25. As your kids get older, maybe you see that 25 is either way too early for both of them, or maybe it’s too early for one and perfect for one of the others. Maybe you have to amend your trust so that one child doesn’t get it until 30 or 35, but the other is good at 25.

There are lots of things that over time you may need as they get older, in addition to changing trustees or other things.

Occasionally you have a parent that says, “This particular child of mine is musically gifted. We want them to be able to go to a place for training in music, Juilliard, exactly.” That’s not a regular college. You can put in provisions that say, “We feel that the trust should be used to encourage them to pursue their musical talents wherever that might take them,” or “We want this kid to go to a school to be a chef or something, because they really like that sort of occupation.”

You can specify those things. People put stuff in trusts to allow their kids to go on church missions or to pay fees for certain milestones in their lives. Again, maybe they get a distribution of a certain amount of money if they get a college degree. Or maybe when they get married, the trust will distribute a certain amount of money so they can set up a household or when their first child is born, there’s a certain amount of money. There are lots of things like that that can be incorporated in the trust.

Probate is the process of proving a will. This is done in the superior courts of the various counties in the state of Arizona. A probate requires the finding of the original copy of a person’s will, along with the other documentation and paperwork. If they do not have that original copy, then even though somebody has prepared a will, it’s presumed that the person had destroyed the original copy because they didn’t like it. Unless it can be shown that it was destroyed inadvertently, like in a house fire or something, that’s the presumption, in which case they’re said to have died “intestate,” which is somebody who dies without a will.

But the probate process requires the filing of a legal action in the superior court, which includes the paying of a filing fee (somewhere between $350 and $400). It requires getting approval of the court for the appointment of a person to serve as a personal representative. In other states it’s called an executor, but it’s the same function.

The purpose of the probate process is to prove the will, meaning prove that it is in fact the person’s will, then to carry out the stated purposes within the will. If a person has a will, then it says who they want to be their personal representative. If that person is available, the court will ordinarily appoint them unless somebody else objects and has good cause why that person shouldn’t be the personal representative. If the person does not have a will, the Arizona statutes basically spell out how an estate is to be distributed. Otherwise, in a will, you can leave your money to whomever you want. Now, if you are not careful in making your will, others can make claims on your estate. For example, if you have a child and you fail to mention that you’re excluding them or that you’re only giving them a certain amount of something from your estate, that child could make a claim that said that you forgot about them, and they could be recognized as a pretermitted heir. Therefore they have a right to a certain portion of your estate.

It’s a little of both. Basically, the probate process usually, not always, only takes effect for a married couple when the second one of them passes away. That’s because most married couples own their home in joint tenancy with right of survivorship. When the first one dies, the other one owns the home outright. There’s no need to do a probate at that point, because the home is owned by the surviving joint tenant. Most couples have joint bank accounts that are set up as joint tenancy accounts, so when on dies, the other owns the account outright.

Yes. Again, there can be other things down the road. For higher net worth individuals, there’s a different type of trust that can be used that would double what is now $5,250,000 that can be passed tax free, so that each member of the marriage could leave that same amount, that $5,250,000. Now you’ve got $10.5 million that you can pass on to your kids tax free. So, depending on your financial situation, there are other things that can be done. There are various and sundry other types of estate planning things that can be done that the average person doesn’t need. There are things called irrevocable life insurance trusts or ILITs. But those are things that most people don’t need. There are some people who can use them.

There’s a lot of things that can go into it, but for the average person having a revocable living trust, which again, revocable means you can revoke it later, but you can also, and this is more important for most people, you can amend it. That gives you flexibility that as things change over time, whether it’s the age of distribution.

As an example, if you started out and you prepared a trust and your kids were three and five years old. It’s going to be distributed at 25. As your kids get older, maybe you see that 25 is either way too early for both of them, or maybe it’s too early for one and perfect for one of the others. Maybe you have to amend your trust so that one child doesn’t get it until 30 or 35, but the other is good at 25.

There are lots of things that over time you may need as they get older, in addition to changing trustees or other things.

Occasionally you have a parent that says, “This particular child of mine is musically gifted. We want them to be able to go to a place for training in music, Juilliard, exactly.” That’s not a regular college. You can put in provisions that say, “We feel that the trust should be used to encourage them to pursue their musical talents wherever that might take them,” or “We want this kid to go to a school to be a chef or something, because they really like that sort of occupation.”

You can specify those things. People put stuff in trusts to allow their kids to go on church missions or to pay fees for certain milestones in their lives. Again, maybe they get a distribution of a certain amount of money if they get a college degree. Or maybe when they get married, the trust will distribute a certain amount of money so they can set up a household or when their first child is born, there’s a certain amount of money. There are lots of things like that that can be incorporated in the trust.

If you only have a will in most situations you’re not going to be able to avoid the process. So it is smoothing it out in that sense. One of the major issues with the probate process is where a couple has minor children, and that results in a situation, if they’re both killed in a common disaster, a car crash or a plane crash or something like that, then, if they’re leaving their estate, usually a husband would leave everything to his, wife would leave everything to husband. But if they’re both gone, then they leave everything to their children.

If those children are under age 18 and they are to inherit $10,000 or more, then it has to go into a conservatorship. The probate process is necessary to transfer the assets to the child. The child as a minor can’t own them outright, so they have to go into a conservatorship.

If you just have a will, the will is basically the document that tells where you want your estate to go. If you have a trust, the trust agreement says where you want your estate to go, but I still prepare a will. In legal parlance, it’s called a pour‑over will. The purpose of that document is to make sure that if you fail to put any assets in the trust or if, say your death is caused by somebody else’s negligence. You’re killed in a car crash. The other party ran a red light and smashed your car and killed you. Your estate makes a claim for your wrongful death, as do your children.

But that would put some money in your estate, so thereby the necessity of having that pour‑over will, the only function of which is basically to transfer assets into the trust that weren’t there already. While there are other purposes to the will, you can nominate a guardian for your children in the will. You can have a personal property list where you want to distribute items that might be family heirlooms or collectibles or things like that.

There are, as you said, a lot of people who feel like, “Well, I don’t have sufficient assets to need a trust.” And there are some people who probably don’t have any significant use for a trust. Those are people who have assets, if they don’t have real estate total $50,000 or less or if they have real estate, the total assets, they give you up to $75,000. Those assets can be handled by what’s called a small estate affidavit in lieu of doing a probate. You can transfer up to $50,000, again, if there’s no real estate. If there’s real estate, then you get up to $75,000. But the concept for most people is, “You know, I don’t have a lot of money.”

Sometimes I have somebody who’s only real asset is their home. If they have children or one child and they want to leave it to, they can avoid the probate process by preparing what’s known as a beneficiary deed. That type of a deed says, “When I die, my home is to go to this person.” Their son or daughter, whatever. Until that time, it’s mine alone. I can sell it. I can encumber it with a mortgage or a second mortgage or a homeowner’s equity line or things like that.

It’s still mine to do what I want with it, but when I die, it goes where I say on the deed. It goes to whatever person I name.

If that’s the only real asset somebody has, and they have somebody they want to name in a beneficiary deed, they can avoid the need to do a trust, and still not have to worry about a probate.

But for the average person, they’re going to have, if you add bank accounts, equity in home, equity in vehicles, home furnishings, jewelry, artwork, various and sundry things like that along with any retirement benefits, bank accounts, 401(k)’s, IRAs, that kind of stuff, it’s real easy to go above the $50,000 mark and necessitate a probate.

A probate, even on a simple estate, is going to require at least four to six months, and sometimes an awful lot longer than that in this court system. It’s going to usually cost a minimum of $2,000 to $2,500 when you pay the filing fee, some attorney fees because most people don’t know enough about probate to be able to do it on their own. And then, notice to creditors. It has to be published in the newspaper, things like that.

There’s an initial meeting. If you understand enough and you’re ready to move forward, I go through, I’m the sole person that meets with the client, I gather information on an information sheet that I have prepared. I get the names of all the parties and how they want trust assets to be distributed. Most parents distribute in equal shares to their children, but not all. Sometimes there are very good reasons. Either a child has proven that they really don’t have any use for the parents, and the parents don’t feel an obligation to leave them something to that child. Or the child does not have a good sense of money management or the child has borrowed from their parents over the years, and they feel like they’ve already got their inheritance. Or things like this.

Even though most couples leave their estates to their children in equal shares, it doesn’t always happen that way. There are certain situations where parents specifically exclude a child, because a child has treated them badly or has kept the grandkids away from them or things of that nature. There are lots of things that these documents can be set up to do. They can basically be customized to do whatever the customer or client wants.

Sometimes what happens is I have one of the spouses who comes in. The other does not. Either they’re not available or they just want the one to go in and kind of find out if it’s something they’re going to be interested in doing. If that’s the case and the spouse that didn’t attend the first meeting wants to come in and have their questions answered, I would usually provide at least half an hour of consultation on that. Once I get the information, and sometimes, to be candid with you, I will, they’re not in a position where they really want to name who the people are. There are going to be alternate trustees or guardians for their children or things like that. If that’s the case, then I’ll photocopy my information sheet and send it home with them so that they can discuss it and figure out who they want and so forth. Then they either bring it back, email it or fax it to us.

Once I get all the information, I prepare the documents and usually within two weeks of that, I have the documents prepared for them. I will then email them to them, which a lot of law firms won’t do out of fear that they’ll take the documents, go sign them themselves and not come in and pay the bill. There’s a risk of that I recognize.

I generally email the documents to them so they have the opportunity to go over them at home. I tell them to make notes on the pages if you need to, so that when you come back I can answer questions you might have. And go on from there.

If that’s the case, then when I send them the documents, they do go over them, come in and we’ll answer questions they have. I can make corrections or changes at that time. It’s not, I didn’t say it’s a high percentage, but probably 20% to 25% of clients get in and say, “Well, after talking with you again, I want to change this person for that person” or things like that. I do try to make changes for them when necessary.

Then they sign the documents. It usually takes about an hour to go over all of the documents and sign them. The initial meeting is, again, half an hour to an hour. The follow‑up meeting might be another half an hour. Then I draft the documents. Go through and proofread them. Make sure they’re the way they should be. Email them out. Make changes if required and then explain to the clients how the documents work and distribute them back to.

That’s kind of the way that works. I send clients out the door with the originals on documents. I do offer a service to the client, if they want, if they are putting real estate from Arizona, because I can’t do out of state real estate. Arizona real estate, if they’re putting it into their trust, I charge $100 to prepare and record the deed to the property so that it will transfer into the trust. That’s kind of the way it works.

I try to explain all of these things to the client. Here’s one of the things that I do, that I know a lot of attorneys won’t do. Anytime I have prepared a trust for clients and they have questions about the documents of “how do I do this?” or “what should I do here?” or “I forgot what you said about this” and so forth, I will take calls from the client on my documents and I don’t charge them for the call. I give them the opportunity to have some additional consultation at no cost. Now, I always advise clients pull the documents out every two or three years and look at them. Make sure everything’s still the way you want because over time, things change.

It may be somebody they’ve named as a second alternate trustee or something who died or moved out of state or they had a falling out with, and they really don’t want to have them in that position anymore. So they may not have thought about it at the time, but if they pull the documents out and see that name, they’re going to say, “Wait. Time to change.”

These documents can be changed. It’s called a “trust amendment,” and I can make changes as they see fit.

If you are arrested, you have the right to know the reason for your arrest. For the time being, you are under police custody. In return, you are given certain rights that protect you against unreasonable treatment.

In 1966 the U.S. Supreme Court decided the historic case of Miranda v. Arizona. It laid down a rule that, if you are taken into police custody, before being questioned you must be told of your Fifth Amendment right not to make any self-incriminating statements.

You must be told four things before being questioned:

You have the right to remain silent.

Anything you say can and will be used against you in a court of law.

You have the right to an attorney.

If you cannot afford an attorney, one will be appointed for you.

When there is a violation of any of these norms, any statement or confession made is presumed to be involuntary and cannot be used against any suspect in any criminal case. Any resulting statement will also be prevented from entering into evidence. At the police station, you should be given a written notice of these rights and cautioned. Under normal conditions, you cannot be held for more than 24 hours without being charged or released.

A person under 17 should usually not be interviewed by the police without a parent or appropriate adult present.

If you are detained, you should give your name and address; thereafter, you have the right to remain silent. If the case goes to trial, prosecutors and witnesses cannot comment on your silence.

There are clear rules that govern the way in which a police officer can question you, to prevent unfair pressure from being placed on you.

If the police are investigating a very serious offense they can, with the approval of a senior officer, delay your access to an attorney on the grounds that talking to an attorney might interfere with the evidence, alert other suspects, or hinder the recovery of stolen property.

The police can take fingerprints if they have reason to suspect your involvement in a crime. They are also allowed to take photographs but cannot force you to have your picture taken against your will.

If the police do not release you within 24 hours, you must be brought before a magistrate (a type of judge) who will decide whether you can be released on bail or on your own recognizance (i.e., without bail). Bail cannot be given to anyone charged with certain offenses or for violating the terms and conditions of probation.

The Fourth Amendment to the U.S. Constitution protects personal privacy and every citizen’s right to be free from unreasonable government intrusion into their persons, homes, businesses, and property.

Law enforcement officers may interfere with your Fourth Amendment rights only under limited circumstances and through specific methods. The Fourth Amendment’s search and seizure protections extend to:

A law enforcement officer’s physical apprehension or seizure of a person, by way of a stop or arrest; and

Police searches of places and items in which an individual has a legitimate expectation of privacy, e.g., your person, clothing, purse, luggage, vehicle, house, apartment, hotel room, and place of business.

Unlawfully seized items cannot be used as evidence in criminal cases. The degree of protection available in a particular case depends on the nature of the detention or arrest, the characteristics of the place searched, and the circumstances under which the search takes place.

In most instances, a police officer may not search or seize an individual or his or her property unless the officer has a valid search warrant, a valid arrest warrant, or a belief rising to the level of “probable cause” that an individual has committed a crime. Violation of an individual’s constitutional rights under the Fourth Amendment will nullify the effect of a search or seizure, and any evidence derived from that search or seizure will almost certainly be kept out of any criminal case against the person whose rights were violated.

As with any facet of the law, there are exceptions to this rule. For example, an officer can use the “plain sight” rule to investigate any area that he can see without moving any obstructions or from where he were to stand in the normal course of performing his duties.