Elder Law Issues Podcast

Here we are, going into 2022. We're also creeping up on the second full year of pandemic restrictions. What's in our future? Who knows? But we have some observations to share about the new year, and the next chapter. Not, of course, about the course of the pandemic itself. We're not qualified to make medical predictions. But join us for our podcast discussion of the effects of our past two years' experience and the coming year.

Beneficiary deeds are very popular in Arizona. A property owner who signs such a deed can avoid probate and simplify administration of their estate. It's pretty easy to create and sign a beneficiary deed -- many people do it without involving a lawyer. We want to shed a little light on how the process works. We discuss who should consider taking such a step -- and who should not. To be clear, we discuss only Arizona law. Other states may have a similar kind of document available. In fact, one source reports that something similar is available in 29 states (and the District of Columbia). We aren't vouching for the accuracy of that list, and we don't know how it works in those states. Your experience in another state could be very different. Check with a local estate planning attorney. But in Arizona, beneficiary deeds have been around for two decades. In fact, we reported about the then-new idea back in 2001. There have been some changes in the law since then, but the idea remains the same. The basic premise almost sounds too good to be true. You sign and record the document. Maybe the only cost is a $30 recording fee. When you die, the person listed on the document records a copy of your death certificate -- and they own the property. But, as we discuss in this podcast episode, the beneficiary deed is not for everyone. People with complicated personal circumstances, particular intentions for their property, or large families might not be good candidates for a beneficiary deed. Here's the thing: the difficult part is not preparing beneficiary deeds. It's figuring out whether that's the right approach. That's when a qualified estate planning attorney should be involved. Come see us first if you are an Arizona property owner.

We have some ideas for last-minute Christmas gifts for seniors. Here's the thing: we think your mother/father/grandparent would mostly like to hear from you. A regular message is better than candy -- even better than flowers. We've made recommendations for gifts in the past. Some of those have come from our own experience with family members. Others are reports from clients about what has worked well. But our best ideas are more about regular contact than new stuff. Not that stuff won't be appreciated. We also have some ideas about the best ways to visit with your aging family member. Consider the limitations they might have in vision or hearing. Give some thought to going to their place rather than bringing them to large family gatherings. But don't skip getting together with them just because it can be challenging. Of course, in pandemic times you also have to be concerned with safety. It may be easier to maintain distance in a series of smaller visits to your elderly relative's home or apartment. Spreading the visits out, and keeping them small, might be safer and more generous. Christmas gifts for seniors can be difficult, no doubt. Didn't you give slippers last year? How much candy do they need. But there's no limit to the amount of loving contact they can use.

Many of our clients feel strongly about burial and cremation. Over two-thirds of Arizonans, in fact, prefer cremation over burial. In this podcast episode we discuss some steps you should take to help assure your wishes are carried out. We often include burial and cremation directions in our estate planning documents. But, as we explain here, that's not really the best way to direct your funeral/burial arrangements. What should you do? Several things: Discuss your preferences with your family. Include any family members you think might not agree with your choices. Make arrangements with a funeral provider. Sign any forms they offer to describe your wishes. And, most importantly, pre-pay for your chosen arrangements. Do you prefer cremation? Sign a cremation directive. Then put it with your other important documents. Do you intend to donate your body to science, or to a particular organization? Make sure that you have contacted them, discussed the process, and signed any documents necessary to accomplish the donation. Do you favor burial in a family plot, or with other family or loved ones? And make sure there's a plot in your name, and make sure everyone knows the details. And prepay for transportation, and the actual burial arrangements. In your will and/or power of attorney, spell out your burial and cremation preferences. But that's not sufficient all by itself -- it just helps make sure your family knows you were serious. Cremation frequency is rising rapidly, with industry experts estimating that well over half of all Americans choose cremation. Interestingly, with a large increase in deaths in 2020, cremation rates appear to have accelerated somewhat. But if you want to direct burial or cremation you should take steps to ensure your wishes are carried out.

One common concern for fiduciaries who oversee home care: how should they handle household payroll? Are in-home caregivers independent contractors? Or must the fiduciary withhold Social Security and taxes from their paychecks? As we explain in this week's podcast, in-home caregivers are almost always employees. They simply do not meet the standards set out by the Internal Revenue Service for treatment as independent contractors. Join us as we review some of the considerations facing fiduciaries who hire caregivers, including: How complicated it actually is to manage a household payroll What liability the fiduciary (trustee, conservator, financial agent) might have for making the wrong choice The benefits to employees who are hired on payroll The distinction between "salaried" and "exempt" employees Once you've listened to this episode, you might have additional questions. Of course our podcasts are not individual legal advice, and we can't represent you based on your online questions. But we do benefit from seeing our listeners' questions -- on this and other issues. Let us know what lingering concerns you have about household payroll for in-home caregivers, and maybe we'll be able to address some of your questions in future discussions. Also: talk to your CPA about household payroll. They hold a unique position from which to advise you and help steer you to the right resolution.

The end of the year is upon us. So is the holiday season. You might be considering making gifts to your grandkids. Or perhaps to other people who are minors (or just young). First a bit of good news. For the past four years, the federal gift tax exclusion amount has been $15,000. That has meant that a gift to virtually anyone -- minor or not -- under that figure meant no tax filings, no taxes and no liability. As of January 1, 2022, that exclusion figure will increase -- all the way up to $16,000. But that begs the real question: how do you make a gift to a minor? They can't have their own bank accounts, sign their own tax returns or make investments of their own money. So how do you give them a substantial gift? And, by the way, what is "substantial"? In this week's Elder Law Issues podcast, we discuss some of the options -- including UTMA accounts, 529 plans or other educational accounts, and establishment of trusts. Which is right for your circumstance? The classic lawyer's answer applies here: it depends. Who knew it would be so hard to make gifts to grandkids? We did, that's who. But we'd like to try to make it a little easier for you to figure out.  

We see this practice when we represent trustees, conservators and other fiduciaries, and we always counsel against it. A trustee, for instance, might pay trust bills from their own funds and then make a reimbursement to themselves as fiduciary. It can seem simple and unobjectionable. The person handling another's financial affairs pays for something themselves, or puts it on their own personal credit card. Then they make reimbursement to themselves as fiduciary, and make a note documenting the transaction. Yes, it's permissible. Even if you file the accounting with a court, they are likely to approve it. But it's still a bad practice. As we discuss in this week's podcast episode, a fiduciary needs to keep meticulous records. When the fiduciary writes checks to themself it is automatically suspect. Unless each transaction is thoroughly documented, the likelihood that someone may object increases. In the real world we find that recordkeeping is often spotty. You may be able to total up all the transactions and show that the reimbursements are justified, but a skeptical observer may find the paper trail inadequate. It's easier -- and safer -- to simply avoid the conflict and make payments directly to vendors. When you use a credit card, pay the credit card bill directly rather than writing a reimbursement to the fiduciary. Help keep the transactions clear.

When you administer a trust or estate, you need to pay particular attention to record keeping. That may seem like an obvious statement, but too often books and records are kept poorly -- or not at all. In this podcast episode, we discuss record keeping for trustees and other fiduciaries. We talk about the importance of contemporaneous records. And we urge fiduciaries of all kinds to carefully document what they do. Fiduciaries need to understand the tax effect of decisions they make -- particularly the income tax consequences. They need to be aware of what documents the IRS and state taxing authorities will require. And they should understand that income tax problems may not arise for months or even years. Every trustee should review the difference between trust accounting income and taxable income. Will the trust pay an income tax, or will tax liability pass through to the beneficiary (or beneficiaries)? When does the trust even need to file an income tax return? The rules for record keeping differ among trusts, probate estates, conservatorship accounts and other fiduciary arrangements. It is important for every fiduciary to get good legal and accounting advice, and to maintain regular records. Those records should clearly identify income, expenditures, time spent by the fiduciary and tasks accomplished. Not planning on charging a fee? It doesn't matter. Keep contemporaneous records of what you do, how long it takes, and what information you collect. Our basic message: always act as if a judge will be looking at your files and records. Because sometimes she will.

Imagine that you are conservator (of the estate) for a person who needs protection. Or, perhaps you are trustee of a trust for someone who has difficulty handling money. How do you handle regular living expenses? You might think that your obligation is to be as protective as possible. In that case, you would never make cash directly available to the person whose funds you are handling. You would also not let them handle a checking account, a debit or credit card., Even prepaid or gift cards would be problematic. As we explain in this podcast episode, that's not the right way to think about your obligations as fiduciary. Whether you are a trustee, conservator, or agent under a power of attorney, your focus should be on the individual. You should be thinking about how to accomplish the goals of the relationship, maximize the dignity and autonomy of the person you are dealing with, and improve the quality of their life. As we outline, you might encourage the individual to take responsibility for some of their own living expenses. It might be prudent -- or even necessary -- to monitor their expenditures, but that does not mean you can't give them some leeway. We talk about prepaid debit cards (and especially a particular type that we often use: the True Link card). We also favor regular, though modest, distributions of cash or even a small checking account. Of course, some trusts will prohibit such arrangements. Other circumstances may prevent liberal use of alternative arrangements. We certainly do not mean to say that they are required in every case. But your job as fiduciary should include assessing (and reassessing) the use of alternative arrangements to enhance autonomy.

Do you have to file a trust tax return for the trust you manage? It depends. In this episode of Elder Law Issues, we review the trust income tax filing rules. Spoiler alert: not every trust requires a separate tax return. Even trusts with an EIN (Employer Identification Number) may not actually have to file a federal income tax return. Join us for our discussion of which trusts need to file a federal return, and what it means to be classified as a "grantor" trust. We explain what rules apply to trust tax filing, and who has to prepare them. Caution: the entire area of trust income tax filings is complex (yes, we did notice our pun) and particular to your situation. Please discuss your situation with your own attorney and/or certified public accountant. Your mileage, as they say, may vary. And state laws may be different, so make sure you get your advice from a local (and qualified) expert. A related question that we touch on: when does your trust actually require an EIN? Another spoiler alert: it's not when the trust is irrevocable, or someone other than the grantor is trustee -- though those are both important questions to consider.

Imagine (and it's not much of a stretch) that a Maryland resident wrote a trust for her Pennsylvania daughter naming an Arizona trustee. What state law governs the trust's administration? Trust situs, governing law, jurisdiction and venue are all confusing topics. In this podcast episode, we try to unpack some of the terms. We discuss how the governing law might be different from proper court to bring any action. State taxation of the trust's income may be different yet again. Mobile individuals, multiple trustees, and multiple beneficiaries can all complicate state law considerations. If you are a trustee, you need to understand the effect of this interplay. If you are the settlor of a trust, you need to appreciate how complicated that interplay can be. What state law governs administration of a given trust? The answer can be difficult, surprising -- or even altogether unclear. An experienced attorney can help parse the question in your individual facts. A qualified Certified Public Accountant may also be able to offer insight. The answer is not always found in common-sense considerations or (sometimes) even in the document itself.

Modifying trusts used to be very complicated. But in recent years, the law of trusts has changed -- in Arizona and in many other U.S. jurisdictions. Of course some trusts are fully revocable and amendable. But not all. Many trusts -- particularly after the death of the person establishing the trust -- are irrevocable. That might also mean unamendable, but not necessarily. State law varies -- a lot. But in Arizona, at least, irrevocable trusts are often amendable. Most often the decision to amend lies with the trustee, but there might be a trust protector or other official with authority to make changes. Sometimes a change can be as simple as a trust restatement. Why might you want to undertake a trust change? There are any number of reasons, from change in the beneficiary's status to unanticipated tax law effects. Do not undertake modifying trusts lightly or without full consideration. You probably want to engage the services of a qualified lawyer and consult an experienced Certified Public Accountant. In this podcast episode we discuss trust modification. We review why you might consider a change, and paths you might take. We give some pointers and cautionary suggestions for trustees and beneficiaries considering modifying a trust.

As the this extraordinary year winds down, we all start thinking about 2021 year end planning. In the tax and estate planning world, that might mean quite a lot of potential concerns. Many news sources have inundated you with information about possible changes in estate tax law, income taxation and other new developments. Some commentators add a sense of urgency. If you don't do something right away, you might lose important opportunities! In this podcast episode, we discuss the importance of planning. But, for the vast majority of Americans, changes being discussed in Congress will not mean they need to rush to modify estate plans. Except for the wealthiest individuals, few of the proposed changes are likely to require immediate action. And remember: there is no state estate tax in Arizona. Yes, potential changes in federal law might mean you need to revisit your estate plan. But for most clients, that reconsideration will work just fine after the first of the year. You might want to check in with us (or your own estate planning attorney, if you have a relationship established), but we might tell you to wait until we know just what's happening before rushing to make changes. So let us help you assess whether you need to make 2021 year end planning decisions. But if you do need to make plans, please don't wait until the very end of the year.

Say you need to get authority over your father's finances because you don't think he can manage them himself any longer. You know you need a power of attorney (POA). Can't you just go online, download a financial POA form, and get your dad to sign that? Last week we talked about Arizona's online health care power of attorney form. It was put on the web by the Arizona Attorney General, and it's based on the Arizona statute for health care powers of attorney. While we don't exactly recommend you use it, it certainly is available, recognized and effective. So why can't you find the same kind of form for financial powers of attorney? Because they're dangerous. That's why. They're dangerous for your father to sign, and they can even be dangerous for you to use. In this week's podcast episode, we talk about financial powers of attorney and why it makes sense to involve a lawyer in their preparation. We also explain why the Arizona state government doesn't have a financial POA form online for you to download.

If you look around, there are a number of places you can download an online health care power of attorney. Some will assure you that they are valid in Arizona. A few are Arizona-specific. For example, the Arizona Attorney General's office provides a set of online form documents (they call it "life care planning"). Those forms come straight from the Arizona law on advance directives. The packet of documents includes a health care power of attorney, a living will, a mental health care power of attorney, and even a pre-hospital medical care directive (Arizona's so-called "orange form"). Do these online health care power of attorney forms work just as well as attorney-drafted documents? Can you save legal fees by just downloading the forms, completing them and getting them properly witnessed? As we discuss in this week's podcast episode, that might work just fine. But we customize your documents to cover your actual wishes. We assure that they are properly completed and distributed. We think we add value. But here's our biggest tip: once you've completed documents, don't just sign whatever your doctor's office, or the hospital admissions worker, puts in front of you. Make sure your advance directives properly reflect your actual wishes.

A month ago, a podcast listener asked us a series of detailed questions about self-settled SNTs (special needs trusts). We tackle the questions in this episode. Actually, the listener's questions didn't specify whether their questions were about self-settled special needs trusts or third-party trusts. And the answers differ quite a bit depending on which trust type is involved. So in two earlier podcast episodes (here and here), we addressed the questions for third-party SNTs. Those trusts hold a third-party's money -- like an inheritance set up by a parent of grandparent, for instance. When the money was once directly available to the beneficiary, though, the trust has to be different. This comes up with personal injury settlements, direct inheritances (money left outright to a beneficiary with a disability) or accumulated wealth. It is harder to qualify for Supplemental Security Income and Medicaid benefits, and when a trust is created the options tend to be more restrictive. So we back up and tackle the same questions, about self-settled SNTs. We do love to hear/read questions from our listeners. Of course, we can't give individualized legal advice based on those questions. But they often give us an opportunity to explain a key part of the elder law that we practice -- and love.

Purchasing Cars with Ashley? Wait: does Fleming & Curti, PLC, have a personal shopper for auto acquisition? Not exactly. But because of our unusual service mix, one of the things we often deal with is setting up transportation for trust beneficiaries and others. That frequently means we use trust (or conservatorship) funds to buy or replace automobiles. Meet Ashley Cooper. Ashley is one of the hard-working and thoughtful Fleming & Curti, PLC, employees, and usually is the main contact for vehicle acquisition, titling and replacement. And no, her name doesn't indicate that we have any special deals with a leading automotive marque. Of course that's not all Ashley does. Join us for a review of some of the unusual duties Ashley has taken on in our fiduciary administration practice. Consider the challenge: we need to make sure that transportation is available and reasonably priced. But vehicle management (and driving itself) is one of the main risks affecting many drivers and vehicle owners -- not to mention trustees. So we have to regularly deal with buying, maintaining, insuring and replacing vehicles. And that doesn't even address how to take title and (sometimes) assuring that someone can actually drive. That's why we think Purchasing Cars with Ashley is an interesting problem. Join us for this episode of Elder Law Issues, in which we talk with Ashley about her unusual job description and experiences at Fleming & Curti, PLC.

In our previous podcast episode we answered listener's questions about SNTs -- special needs trusts. This week we finish up with more questions about SNTs. As we explained in that previous podcast, special needs trusts can be "self-settled" or "third-party." The difference: follow the money. If the funding came from outside sources, the SNT is usually a third-party trust. If the assets came from the beneficiary herself (or himself), the trust is usually a self-settled SNT. When the trust's assets came from outside sources the SNT may still be a self-settled trust -- if the beneficiary could have claimed the funds outright. These two podcast episodes concentrate on third-party SNTs. In a later episode, we'll review the same topics and our answers and explain how they differ for self-settled SNTs. We hear a lot of confusion about SNTs from our clients. Colleagues, accountants, investment managers and even eligibility workers often express confusion about the details. An entire industry of public benefits assistance tackles some of the most common problems -- but often not particularly about special needs trusts. We try to clear up some of the confusion, and address the most common questions we hear. One listener graciously submitted a list of questions that included most of those we hear most often. With thanks, we tackle those questions in this two-part series.

A listener sent us several questions about SNTs (that is, special needs trusts). We thought the questions were good, and if we talked about them it would give us a chance to explain a number of things about trusts for people with disabilities. Broadly speaking, there are two different "flavors" of SNTs. Sometimes the beneficiary's assets fund the trust (those are called "self-settled"). Others are "third-party" (that is, the money comes from someone else -- a family member's estate plan, for example). Those "third-party" trusts generally have more generous rules than their "self-settled" cousins. When we get questions about SNTs, our answers usually have to be doubled-up. "If the SNT is a self-settled trust, the answer is ..." we might explain. And then: "but if it is a third-party trust, the answer is different." In order to keep the "Answer A/Answer B" distinction to a minimum, we've decided here to answer all the questions only for third-party SNTs. When we recorded this podcast, it spanned two longer-than-usual sessions. In a third, later, session, we will go back over the same territory but for self-settled SNTs. A word about terminology: we use "self-settled" and "first-party" interchangeably. We do not believe that there is widespread acceptance of a distinction between "special needs" trusts and "supplemental benefits" trusts, but some use the latter term for one (or the other) of the two types of trusts. And there are actually four or five other types of special needs trusts to consider. We haven't talked here about pooled trusts, or "Miller" trusts, or "sole benefit" trusts or "Qualified Disability" trusts because they are less common terms, not because they are unimportant. But we'd love to get your questions about those designations for later episodes.

What is the scope of duty for an agent on a power of attorney? Are there requirements, and limits? First, language. The person you give authority to in your power of attorney is an agent, or an attorney-in-fact. They are not your "power of attorney", as that is the name of the document itself. Also, there is a difference between health care powers of attorney and financial (sometimes general, or just durable) powers of attorney. There are also other subdivisions of the power-of-attorney genre. Each has its own scope of duty. Join us for our weekly Elder Law Issues podcast, as we discuss the duties and limitations on your attorney-in-fact (or, if you prefer -- as we usually do -- agent).

Trust administration rules are complicated. They involve state law on fiduciary duties. The trustee also has to worry about tax rules -- estate tax, income tax, and even generation skipping transfer taxes. Trustees have to provide accounting information, and sometimes some formalities about the style and timing of those requirements. Property management -- both for dealing with real estate and valuing, protecting, and distributing personal property -- can add challenges. Then there are the interpersonal dynamics among trust beneficiaries. Oh, wait: the trustee might also be a beneficiary, raising conflicts of interest as a possible concern. In this podcast discussion, we review how some of those complex principles interplay with one another in the real world. Join us for a little role-playing exercise that might ring true with your own trust (and family) situation. Though you might face difficulty with trust administration, there are a number of strategies you can use to minimize mistakes and problems. Good legal advice and a competent CPA can make all the difference. You should contact your professional advisers before you liquidate trust assets, make decisions about distributions (even small amounts of personal property), identify trust beneficiaries or respond to requests for more information. That's exactly what those professionals train for.

We really enjoy our series introducing the Fleming & Curti, PLC, staff (and we hope that you do, too). In this episode, we talk with legal assistant Jessica Lopez. Jessica actually has two separate job descriptions. If you call to make an appointment for your estate plan, a guardianship/conservatorship, or any other legal matter, you will first connect with Jessica. She will explain how the first meeting works. She will send you a questionnaire to complete (so we have enough information to figure out what needs to be done and whether we are the right people to do it for you). And, finally, she will arrange for payment of the initial consultation fee. Her second skillset involves getting estate planning documents signed. Signing your wills and powers of attorney? Jessica handles a large share of the will execution appointments. You will get to meet her in person at that signing. We are confident that you will like Jessica Lopez. Join us for this podcast episode to get a better sense of her, our office and how we work.  

In late 2019, Congress dramatically changed the rules on IRAs and other retirement accounts inherited from a deceased owner. We talked (and wrote) about the changes at the time. But now it's time for an update on SECURE, the Act which changed the rules. Lord knows there's a lot of information available on the SECURE Act. In this podcast episode, we highlight the practical considerations we see clients grappling with every day. Rather than diving deeply into the rules, exceptions and special cases, we describe the practical impact on real people. We also talk about how our clients need to reconsider their beneficiary designations in wake of the Act. We don't intend (at least not here) to give comprehensive information on retirement plans and beneficiary designations. Instead, this is our 2021 update on SECURE and what it means. And, by the way, that includes some thoughts on how to deal with the IRA custodian after the death of the IRA owner. [Notice that we talk -- and write -- about IRAs in this SECURE update. Generally speaking, the same rules apply to 401(k) accounts, 403(b)s and most other defined contribution retirement accounts.]

Last week we wrote (in our weekly newsletter) about how to modify a trust by restating it into a whole new trust document. This week's podcast episode gives us a chance to talk about the idea -- a sort of Restatements 101 class, if you will. What is a trust restatement? Think of it as a new edition of your trust. Or, as we describe, maybe Your Trust 2.0 (or 4.0, or maybe even 9.0). The basic principle of Restatements 101: the restatement washes away the old trust document altogether, and replaces it with a new trust. But it keeps the same name, so nothing has to change in trust funding. When do you want to restate your trust (as opposed to just amending it)? It depends, but we will recommend a restatement when there are multiple amendments, or you want to entirely remove language that no longer serves its purpose. We sometimes use trust restatements for other purposes, as well. In Arizona, for instance, a trust "decanting" may be accomplished by a trust restatement (with, of course, good legal advice). But most often the trust restatement is just a tidier way of modifying the trust without having to keep multiple versions at hand.

It's unusual for a law firm to employ a property manager. But that's what Heidi Hauschild does at Fleming & Curti, PLC. Fleming & Curti, PLC, occasionally acts as trustee. Sometimes we are personal representative of an estate, court-appointed conservator, or agent in a durable power of attorney. Because of that role, we frequently have to deal with real estate, vehicles -- and occasionally airplanes, race horses and other unusual assets. Join us for this week's podcast episode. We interviewed Heidi about some of the unusual and arcane things she's had to learn on the job. Heidi is also the first-line legal assistant handling probate proceedings -- where there can be a lot of overlap. Do you imagine that your family will all get along when it comes time to settle your estate? That hasn't necessarily been Heidi's experience. Join us for a fun conversation with Heidi Hauschild -- property manager and probate administrator.

Hospice programs exist in pretty much every American community. From their first appearance in this country in the mid-1970s, the movement has grown dramatically. There are two obvious reasons for the growth in hospice programs in the past half-century: The kind of care available, focusing on palliative care, is attractive to many patients at the end of life, and Medicare funding has made hospice available to far more patients. But do patients (and their family members) find the care comforting and helpful? In our experience, the answer is almost always a resounding "yes!" In this podcast episode, we discuss our (local) experiences with hospice programs. The Tucson community has long embraced the hospice movement. In fact, the Hillhaven Corporation opened the first free-standing hospice program in the country here in Tucson, in 1973. While that program eventually failed, there has been a strong hospice presence in the Tucson area for almost fifty years. Fleming & Curti, PLC, began in its first form just three years after that first hospice opening. With that rich background, we have had a lot of opportunities to observe hospice in actual real-world cases. We've always been impressed by what we see. As individuals, we've also had a number of experiences with various hospice organizations. Join us for our discussion of hospice programs in Tucson, and our real-world experiences.

At Fleming & Curti, PLC, we think 529 Plan accounts are a great way to help educate your children and (especially) grandchildren. Coordinating 529 Plan accounts in your estate planning is challenging, and important. There is certainly a big industry of financial planners pushing for you to consider such plans, and we generally approve. But most of the writing about education accounts focuses on selecting among the various options. Less attention focuses on ownership, succession and tax treatment of the plans. Who should own the 529 Plan account you set up for a child or grandchild? Generally, the person who sets it up will be the owner. The Plan may allow a successor owner who can take over on your death. Note, though, that if a parent owns the 529 Plan account, it may interfere with eligibility for some scholarships or student loans. Coordinating 529 Plan accounts with your estate planning means, among other things, setting up a succession of ownership. It may also mean allowing the owner to change beneficiaries if, for instance, one child decides not to attend college. It can also be important to consider how the tax-free growth in a 529 Plan account might disproportionately benefit some heirs. We discuss these -- and other -- considerations (like the relationship between 529 Plan and ABLE Act accounts) in this week's Elder Law Issues podcast episode. Join us for the discussion.

Goodbye Odin Tyvlytter. We miss you terribly. We are very sad to report the death of Odin, one of our canine employees. As a blue merle Cardigan Welsh Corgi, he was hard-working, loyal and reliable. He came to work virtually every day for ten seasons. He might not have been quite as reliable as The Iron Man, but he came close. For the last few years, Odin had mentored Duncan, a Golden Doodle with long legs and a bubbly personality. Duncan now gets to mentor the newest canine addition to the office staff, Rosalind Franklin. Rosalind's name, by the way, is a nod to an important but often overlooked scientist who made terrific contributions to chemistry and biology in a tragically short career. Talking about dogs makes us think (and talk) about Wyatt Earp, the first full-time office corgi. We miss him, too. Fortunately, Roz is so enthusiastic about everything that she and Duncan keep us focused on the present. Maybe you'd like to come by and meet this dynamic duo. Bring your own treats, or borrow some from us. Goodbye, Odin. You were a terrific companion. When you first arrived, we knew you wouldn't likely outlive us. But it's still hard to lose a beloved pet.

Great! You've signed your will, your powers of attorney, and your trust. You have retitled your real estate to the trust (or perhaps to a beneficiary deed). Did you complete your personal property list yet? In this Elder Law Issues podcast episode, we talk about the usefulness of a list of items of tangible property -- and recipients for each listed item -- in your Arizona estate plan. As always, we limit our discussion to Arizona law, though we do know that other states may have similar provisions. What is the list? Is it a mandatory list that you must complete showing all of your personal property? No. Is it required for your will and trust to be effective? No. But it is a great help to your family, heirs and beneficiaries. We have written and talked about the value of these lists of personal items before. In this podcast episode, we go into a little more depth about how such a list can be used to augment your estate plan. Remember that you can only include tangible personal items (not real estate, not cash, not bank accounts). Also, you can update, add to, discard or change your list whenever you want. We explain how that works, and how you might use the list.  

Have you ever thought about having group meetings as part of your estate planning review? Your lawyer, CPA, financial planner, life insurance professional and others could meet once every year. That way we could all review your current documents, beneficiary designations, tax situation and other issues. Would such a group meeting be a good idea? Of course it would add costs to preparation and maintenance of your estate plan. But it might also help assure that your wishes get carried out. What's the big deal? you ask. I've signed the documents and shared them with family members and professionals I work with. Isn't that the end of the process? No, it's not. Estate planning is a continuing process. Your family situation changes, your assets change -- everything changes. A group meeting might be one way to stay on top of the constantly shifting dynamics in your personal (and, maybe, professional) life. For some clients, group meetings are a heck of a good idea. For most, the idea might be overkill. Listen in as we talk about the concept. Our clients should feel free to talk about such meetings and review the pros and cons. Want to discuss it more? Feel free to schedule a time to talk with us.

A family member gave you (or you inherited) a piece of property, which you now want to sell. Do you know how to calculate basis for income tax purposes? And how do you determine what capital gains tax you might owe? Most people understand that there is no tax due on a gift or an inheritance. Unfortunately, that understanding is too simplistic. You might owe some income tax even in cases where there is no estate tax to pay. You might pay income taxes, for instance, when you decide to sell inherited assets (or assets that were given to you). But how much tax might you owe? For most kinds of inherited assets, it depends on how much capital gain you recognize on sale of the asset. And that requires an understanding of the concept of basis for income tax purposes. In this podcast episode, we discuss the concept of basis and explain the basic (did you see what we did there?) rules. This information might not reduce your tax bill. But it should help you understand how to control when income taxes have to be paid.

Most law offices do not have a case manager on staff. At Fleming & Curti, PLC, we are lucky to have several. We'd like to introduce one of them to you: Jennifer Sandoval, MSW. In this conversation, we talk with Jennifer about what it means to be a case manager in a law office. We also discuss the background she brought to her position. That includes time in the military, and work with a local hospice organization. Why do we have multiple case managers on staff? Because at Fleming & Curti, PLC, we often act as fiduciary. That can mean guardianship (of the person), conservatorship (of the estate), acting as trustee or agent under a power of attorney. Jennifer's work (as she explains) can address the care needs of people with a variety of disabling conditions. Our beneficiaries and principals might be mentally ill, developmentally disabled, victims of a traumatic brain injury, demented or otherwise unable to handle their own affairs. That's why case managers are useful in a law office. Join us for a conversation with Jennifer Sandoval, MSW. She is impressive, and you will like her as much as we do. You will enjoy her calm, thoughtful approach to the kinds of situations we deal with. And you will recognize the usefulness of her background and skill set.

Challenges of aging: everyone knows that there are plenty. In this podcast episode, we discuss some of those challenges. What special knowledge do we have about the challenges of aging? Well, for one thing, some of us are aging. But more importantly, we've worked with a lot of elderly clients since they weren't all that elderly. In our role as Tucson elder law attorneys, we see aging up close and over time. We have seen too many clients (and friends) learn about mobility issues, fall risks, and other concerns. Join Fleming & Curti partners Elizabeth Noble Rollings Friman and Robert B. Fleming for a discussion of the challenges each of us faces as we age. Maybe we'll get you thinking about how to plan for your own odyssey. Perhaps we'll spark questions or observations you'd like to share with us. If so, we will have succeeded in our goals.

Though it is little-known, every county in Arizona has one. But what is the role of the Public Fiduciary in Arizona? No other state has precisely the same kind of position. Other states may have a public guardian, public conservator or public administrator. Some may have two of those offices. One or two states even have all three. But no other state has rolled all three positions into a single public office. In this podcast episode, we review a little bit of the history of the Public Fiduciary's office, and particularly the one in Pima County (Tucson). We have some insight into the role of the Public Fiduciary -- one of us held the position for five years in the early 1980s.

Using your power of attorney should be pretty straightforward. You signed the document so that someone could handle your finances and health decisions. Those are the two main "types" of power of attorney -- though different commentators variously insist that there are six, or five, or four, or three different kinds of documents. But what happens when your agent needs to act? Experiences vary widely. One big variable: the person reviewing your documents likely has no legal training. They might think the document is invalid, or insufficient. They might misunderstand its purpose and your authority. We only know about Arizona law (it's what we practice), but even within one state experiences can be different. In this discussion, we hope to give you some reassurance that your documents will be effective. We also hope to help your agent understand that they should insist on being able to use your power of attorney. This week's podcast is in response to a question we received from a regular listener: My wife's mother (currently 93), signed a durable power of attorney 15 years ago. Mother's attorney told my wife that the POA could be used to place Mother in a care facility. My wife began managing Mother's finances when she turned 86 (seven years ago). My wife has been told repeatedly, however, that her mother's attorney was incorrect, and that no POA stretched the legal distance to allow her to sign her mother into a facility without a guardianship. Mother had to personally sign the necessary 22-page contract, initialing each page. Why cannot a POA be used for the agent to make placement of Mother into the care facility?

Signing tax returns can be difficult -- or even impossible -- for someone who is incapacitated. Can someone else sign for them? Who -- and how? To be clear, we're not talking about an amanuensis signing. But we do like to use the word. That kind of signing involves a completely competent -- but physically challenged -- person directing someone else to sign on their behalf. Federal and state law recognize the ability to use that approach. But what if the signer is mentally incompetent, or incapacitated? And who decides that, anyway? And it's not just about signing tax returns -- though that problem is much on the minds of many of us in this tax season. There are all sorts of documents that might need to be signed. In this podcast episode we try to give you some general information about signing for someone else. Do you hold a written, signed, power of attorney for them? Has a court appointed you as guardian of their person, or conservator of their estate? Let us explain some of the mechanics of signing for someone else.

Qualified charitable distributions (QCDs, to the initiated) are a relatively recent addition to the federal income tax rules. Using them can make a real difference in the income taxes some IRA owners have to pay. If you are over age 72 (or younger, if you inherited an IRA from someone else) you may know at least a little about required minimum distributions. Every year you must withdraw at least a minimum amount from your IRA. You can withdraw more, of course. But you pay tax on every dollar you withdraw. There are exceptions and some special rules. If you have a Roth IRA, there are no minimum distribution rules (unless you inherited it). To the extent the IRA contributions were taxed before going in, withdrawals might not trigger taxation. But still, the income tax effect can be pretty overwhelming -- particularly to a retiree who doesn't actually need the minimum distribution to cover living expenses. Try this illustration: Imagine, for example, that you had $400,000 in your IRA on December 31 of last year. This year you turn 75. You'll have to withdraw almost $18,000. If you have plenty of other income, you could be paying as much as about $6,500 of additional tax. And that is on income you didn't really need at all. Now imagine that you have a favorite charity, and last year you gave them $20,000. Unfortunately, you couldn't deduct the contribution last year. Especially with an expanded standard deduction, a lot of taxpayers find that they don't get any specific income tax benefit from charitable gifts -- even large ones. Eureka! This year you can order your IRA custodian to send your minimum distribution directly to your charity! You don't get a deduction at all -- but you get something much better. You get the entire $18,000 out of your taxable income in the first place. Join us for a discussion of this concept. Then ask your tax preparer or estate planning attorney if you benefit from using qualified charitable distributions.

For clients with some types of assets, we frequently encounter questions about LLCs and trust funding. Should your trust be a "member" of each limited liability company, or should the LLC manager be a trustee? Do you need to change your LLC operating agreement? How do you get these interests into your trust's name? Not every estate planning client needs to worry about this issue. But those with rental real estate, for instance, might have already set up LLCs to hold those investment properties. They might even have established a separate LLC for each property. They wonder if they need to make changes to each LLC operating agreement, or rearrange the LLCs' ownership interests. In this week's podcast we discuss the interrelationship of LLCs and trust funding. We describe some of the choices, and the usual approaches we consider. Spoiler alert: as is so often the case with legal questions, the answer begins with "it depends."

Are you thinking about making changes to your estate plan? If you're already our client, or you are in Southern Arizona, we'd like to help. But we have some advice for you in any case. In this podcast episode, we discuss some of the common mistakes we see people make. Changing your estate plan isn't as simple as scribbling out one name, writing in a new one and initialing. That kind of "change" is almost certainly ineffective (well, in Arizona, anyway). How about writing out a new note: "here's what I really mean to do ---". Another fail. Don't do it. Just don't do it. We see so many instances of people worrying their estate plans like the proverbial dog worrying a bone. There's a high likelihood that the change you want to make is straightforward and uncomplicated. But there's also a high likelihood you'll add cost and confusion if you try to do it yourself. Here's one thing that lawyers are actually good for: we can ask you questions, figure out what you're really trying to accomplish, and make it happen. It's what we do. Well, that and recover from the disasters that you might inflict if you try making changes to your estate plan without good legal counsel.

What are UTMA, 529 and ABLE? And which is better for your situation? The difference can be confusing. How to make a gift, but not cause other problems because of the recipient's youth, immaturity or limitations? Three common mechanisms are the topic of this podcast episode. We talk about (among other things): UTMA -- the Uniform Transfers to Minors Act (a state law, adopted in Arizona and 48 other states -- this may be the year that South Carolina joins the rest of the states). §529 (education) accounts -- a federal tax-favored way to set money aside for future college education costs (and some other expenditures). Though they are based on federal tax law, most states have created 529 programs in accordance with that law. ABLE Act accounts -- another federal tax law that encourages states to set up specialized investment alternatives. This time, though, the intended beneficiaries are people with disabilities -- regardless of age (though their disability must have existed before they reached age 26). Join us for a discussion of UTMA, 529 and ABLE. We hope to break down the jargon and clarify the differences.

The "Lost Art" of codicils? What makes it lost? A listener asked several questions: Under Arizona law, may I make a codicil to an existing will? May I designate an executor? And leave everything to the executor? Provide instructions for the executor? In this podcast episode, we review these deceptively simple questions. It gives us an opportunity to talk about language, typing (including our first use of the venerable phrase "carbon paper" in years) and the utility of seeking legal counsel. Can you make a codicil? Yes, but you might just as well sign a whole new will. In fact, Arizona law eliminates the distinction between a will and a codicil (see the definition section of Arizona law, and scroll down to the definition of "will"). This is why we call it the "lost art" of codicils. It's because virtually no lawyers prepare codicils any longer. Why not? Hint: it has more to do with computers than art.

We're pretty pumped. We've been podcasting for two years now, and that means this is our 100th episode! We started in March, 2019, with an initial podcast describing the then-recent addition of a new partner (Jacque Mingle) and the then-imminent retirement of founding partner Tom Curti. Tom's doing fine, by the way -- thanks for asking. Join Fleming & Curti, PLC, partners Elizabeth Noble Rollings Friman and Robert Fleming this week while they discuss some of the changes they've seen, the lessons they've learned and the topics they get asked about. At the end of the 100th episode, there should be cake, right?  

Do you need to keep every document you've ever collected in connection with your estate planning? Of course not. Let us help you with shredding your estate plan -- or at least the parts you don't need to keep around. Of course you should keep the originals of your current estate plan. But what about those drafts you got from our office? And what about the previous will and powers of attorney? In this Elder Law Issues podcast episode, we talk about the value of culling your old documents. We also discuss where we think you should keep original documents (spoiler alert: we don't think it's at our office, or in your bank safe deposit box). Shredding your estate plan -- just not the current originals -- can be liberating. You can get rid of a lot of useless paper, and simplify your files. We offer free shredding services for our clients, and we can help.

Sometimes the very public lives (and deaths) of famous people can give us some insight into elder law issues. Take, for instance, the Larry King estate. Larry King died on January 23, 2021, after a bout of COVID-19 -- though his cause of death was listed as sepsis as a result of kidney and respiratory failures. He was 87. What caught our attention, though, was that he handwrote his will -- what the law calls a "holographic" will. We also were struck by media reports that his estate was worth $2 million, though we immediately suspected that his net worth was considerably higher. Does the Larry King estate provide any information that might help less-famous people complete their own planning? Yes, we think it does. Join us for this week's Elder Law Issues podcast as we discuss holographic wills,  non-probate assets -- and Larry King.

If you leave your estate to your child, what interest does your child's spouse acquire in the inheritance? What happens if your child (god forbid) dies before you? Will their inheritance go automatically to their surviving spouse? We get these questions all the time. When we're asked, the short answer is always: "what would you like the answer to be?" Because we can write any arrangement you prefer into your estate plan. But when you do not include a specific provision, there are some default rules that apply. It's not unlike the rules about whether adopted children are included (they generally are, unless you say otherwise), or the presumption (in Arizona) that you have to live five days before inheriting. How are they similar? In both of those illustrations, as in the effect of leaving things to your children, there are presumptions built into the law. But you can change the presumption. Join us for this week's podcast episode, and we'll explain the default rules about your child's spouse (at least the Arizona version, anyway). But Arizona is a community property state. Doesn't that mean that half of anything you leave to a child automatically belongs to your child's spouse? (Spoiler alert: no.) These are some of the questions we discuss in this week's podcast episode. We hope to explicate and uncomplicate the topic.

We have talked and written about Arizona guardianship proceedings before. We still encounter a lot of confusion about the rules -- and even the language. One thing that often confuses people: the use of "guardianship", "conservatorship" and other similar terms. Unfortunately, states do not all use the same terms in the same way. In Arizona, "guardianship" means the authority a court can grant to one person to make personal, medical and placement decisions for another person. In Arizona, "conservatorship" refers to the court-granted authority over financial matters. Join us for this week's podcast episode while we explain about Arizona guardianship. Note that what we describe may not apply in other states. California and Connecticut, for instance, use "conservatorship" to mean what we call guardianship. Other states have guardianship of the person or estate -- and that's not how we use the terms.

Sometimes people want to leave their husband or wife completely out of their estate plan. But can you disinherit your spouse? Last week we talked about disinheriting family members generally. Not that we're in favor of it -- in fact, few of our clients want to completely disinherit children or other close family members. But there is a lot of mythology about the topic. Do you have to leave $1 to anyone you want to disinherit? (Spoiler alert: no -- in fact, it's a bad idea.) Do you need to mention cousins, aunts, uncles and other more distant relatives? (Spoiler alert: generally, no -- unless they are your closest relatives.) But what about disinheriting your spouse? Can you arrange to leave nothing to your husband or wife? The law varies widely from state to state. In Arizona, as we discuss, it might be easier to substantially disinherit your spouse than it is in many other states. But that's really a product of Arizona being a community property state, and the assumptions written into Arizona law as a result.

Can you disinherit a family member? Do you have to leave something to children, spouses and other close relatives? Last week, in our Elder Law Issues newsletter, we wrote about disinheriting a child. Particularly, we addressed the increasingly common request we see from clients: what if I don't approve of my child's politics, or lifestyle? But there's also a broader question to address, which we tackle in this podcast episode. CAN you disinherit a family member? Don't you have to leave something (a dollar? a particular token item? a minimum amount?) to children and other close family members? There is plenty of mythology around disinheritance issues. You can easily find evidence online that disinheritance is disfavored, or even prohibited in some circumstances. Under Arizona law, it's usually pretty easy. Is it advisable? That's a different conversation. But do the same rules apply to disinheritance of a spouse? No -- but that's a podcast for a later date. Like next week.

If you are trustee of an Arizona trust, you must provide information to "qualified beneficiaries" of the trust. But who are those people? If you join us for this week's podcast episode, we'll help you understand the legal phrase, its meaning and effect. We hope that helps you figure out how to discharge your legal responsibilities. Perhaps you are a trust beneficiary. We can help you figure out what information you are titled to receive. This week's podcast episode is for you, too. Arizona law is based on the Uniform Trust Code, so our Arizona information about qualified beneficiaries might be useful in other jurisdictions, as well. But please remember that we do not mean to suggest that our description of the law will apply in your state -- you should talk with a local estate planning or elder law attorney.

There are trust reporting requirements for every trustee. Those requirements vary depending on the circumstances, though. Is the trust revocable or irrevocable? Who are the current beneficiaries? What happens to the trust after the death of current beneficiaries (or, perhaps, the passage of time)? As we discuss in this podcast episode, Arizona's trust reporting requirements are fairly specific. They derive from the Uniform Trust Code, which Arizona adopted in 2008. Does Arizona's version of the trust code apply to you? It's a hard question to answer in the abstract. But for people who are governed by the Arizona version of the Uniform Trust Code, our podcast discussion might help explain the applicable requirements.

You have a long pattern of making gifts -- to your children, to other family members, and to charities. Do you want to continue to make those gifts after incapacity? You need to make your intentions clear now, while you are still able to express those wishes. Perhaps you are managing someone else's affairs. Maybe you are acting as trustee, court-appointed conservator, or agent under a power of attorney. Can you make (or continue) gifts from their assets despite their current limitations? The rules are murky, and they depend on your state law and the documents appointing you as fiduciary. Generally speaking, you need to be very cautious about making even small gifts after incapacity of the principal. There are plenty of people eager to challenge your authority. In this podcast episode, we review some of the principles and make some suggestions. One key suggestion: if you want gifts to continue after your own incapacity, you need to make that clear and leave good instructions.