When advising a client as to their estate planning needs, one of the first discussions that a lawyer must have with a client concerns understanding the difference between probate and non-probate assets. Generally speaking, probate assets are those assets that are distributed through the Court process and pass to the beneficiaries, either pursuant to the terms of a Will or through the process known as Administration if the decedent did not leave a valid Will. Non-probate assets are those assets that pass directly to the beneficiaries by operation of law, and include jointly-owned homes and bank accounts, as well as assets with a beneficiary designation, such as insurance policies and retirement accounts. All the formalities can be done only with the help of experienced and expert legal services like K&Y Law P.C. in Thornhill, Ontario. It is very important that a client knows and understands how the assets that they own are held. You can hire Preston Estate Planning Lawyers to get help with your estate related issues.
For most married couples, the most valuable asset that they own is their home. The most common form of ownership between a husband and wife is joint tenancy with right of survivorship. Arizona is one of nine “community property” states, which means, generally, that property acquired by either spouse during the marriage is deemed owned by both parties jointly regardless of how the property is titled. For example, if one spouse bought a home or a car and only that spouse was listed on the title as the owner, the property would still be considered as owned jointly with the other spouse. There are exceptions for gifts or inheritances received by only one spouse during the marriage, and a spouse can also waive his or her community property interest in property acquired during the marriage. Here are the estate planning lawyers in Nashville area that you need to get in touch with to get your legalities sorted.
In many non-community property states, if a property is purchased by a married couple and the title is to “John Smith and Mary Smith, his wife”, or to “John Smith and Mary Smith, husband and wife” the property is considered owned jointly with right of survivorship. The effect of this ownership in non-community states is that when the first spouse dies, the surviving spouse owns the property by operation of law, and the property does not require probate. In Arizona, most Deeds contain a declaration that the property is being acquired as “Community Property with right of survivorship.” The significance of that additional language means that the property will pass to the surviving spouse without the necessity of opening and completing probate, a process that can be costly and delay the sale of the property for several months. Therefore, it is important that you review your Deed and be aware of just how your property is titled. If your Deed does not include the “with right of survivorship” language, probate will likely be required.
Another reason to review your Deed is if you have set up a Trust. Trusts are a popular means to avoid the necessity of having to transfer assets via probate. Assets that are held in a Trust can be immediately transferred to your beneficiaries upon your death without the expense and delay of probate; however, only those assets that have been properly titled in the name of the Trust are able to pass in this manner. If you set up a Trust, and list your home as an asset of that trust, but you do not prepare and record a properly executed Deed transferring the title of the property into your Trust, that asset is not a trust asset, and the Trust terms will not control the disposition of that asset.
If you are not sure how your property is titled or whether it is in a trust that you previously established, you need to review the property Deed(s). If you cannot locate your Deed(s), and you live in Maricopa County, you should be able to obtain a free copy online by going to the Maricopa County Recorder’s Office Website, at https://recorder.maricopa.gov/recdocdata. Or, as an alternative, you can contact a local title company and ask them to verify how your title is held.
As a final note, make sure that you review any estate planning documents that you may have had prepared to make sure that they are correct and that they are current. If you have elderly relatives that have advised you that you are a beneficiary of their estate plan or that they have designated you as their Power of Attorney or Personal Representative under their Will, make sure that you discuss with them where the documents are kept in the event you need to utilize them on their behalf. Unfortunately, too often a parent or other relative advises a beneficiary that they have made provision for them in a Will or Trust or have designated them as their Power of Attorney, yet when the person dies or there is a need to utilize the Power of Attorney, the documents cannot be located. Copies, especially if not executed, may not be legally sufficient. Most attorneys today do not retain the documents that they prepare nor are they usually filed with the Clerk or Recorder, therefore, knowing the location of and having access to the original documents can be of critical importance. If you have any questions, or are interested in setting up a consultation with one of our attorneys, please call the Carroll Law Firm today at 623-551-9366!
