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Plan ahead to avoid estate-planning mistakes

In Arizona, probate is the legal process for the establishment or validity of a will. Without proper planning however, probate can be costly and absorb assets intended for heirs and beneficiaries.

Recently, a 75-year-old navy veteran attempted to cash out his wife's relatively modest retirement account to help pay for mounting bills for treating her dementia diagnosis. However, seeking guardianship and conservatorship of his wife in Maricopa County Court has cost $6,000 in legal bills and court fees for gaining access over his wife's $25,000 IRA.

The veteran's wife's health problems started around one year ago when she could not communicate and eat properly. He placed her in a group home and sought access to the IRA to help cover these costs. Because she lacked the capacity to sign the required documents, her husband needed more than a power of attorney and had to seek a guardianship and conservatorship for his wife.

This financial and legal ordeal has not ended. He is also contesting another $2,000 in legal fees from a court-appointed lawyer that was designated by a court commissioner to represent and protect his wife's interests. He is also appealing the fees that were charged by the court.

In addition to establishing the validity of a will, Maricopa County' probate court also has jurisdiction over guardianships and conservatorship cases, formal and informal disputes over wills and adult adoption. The county has 22,000 probate cases but that has steadily grown by six to seven percent over the past few years.

There are ways to avoid these costs and complications. When people still possess their mental capacities, they should engage in estate planning and execute a durable power of attorney. In this case, a durable power of attorney could have given access to her IRA and other assets solely listed in her name at much less cost.

Creating a trust for assets is another way to avoid probate court. Arizona law dictates that probate court will assume jurisdiction for anyone who dies with assets over $100,000 for land or $75,000 in personal property unless their assets are held in trust or subject to a non-transfer on death designation.

An attorney can help people review their options and draft legally-valid estate and long-term planning documents. These can help effectuate a person's wishes and avoid legal complications and costs.

Source: The Republic, "Surprise man spends thousands in probate court costs as he tries to help wife with dementia," By Craig Harris, Feb. 15, 2018

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