Law Office of Christopher W. Caine.

FAQ


What is Estate Planning in Arizona?

What Are the Basic Items in an Estate Plan?

What Factors Generally Cause Probate to Happen?

How Does the Divorce Process Work in Arizona?

What Is the Process of Getting a Divorce in Arizona?

Is Mediation Better Than the Court Process in a Divorce?

How Does the Court Decide Custody Matters in Arizona?

How is Child Support Determined in Arizona?

 

What Is Estate Planning in Arizona?

Estate planning is the process of developing a plan for people to create an orderly disposition of their assets or their estates, at their passing. That’s the simple definition. It is estimated that approximately 25% of the US population has a defined estate plan in place. That estate plan may not be up-to-date, it may not be current, it may not be the estate plan that they really want in place, but about 25% have a plan. That means the other 75% have no estate plan in place. Even people that don’t have really significant assets, such as real property or financial assets, still need some kind of plan in place to create an orderly disposition of property and assets at their passing.

When they die intestate, at least under the laws of Arizona, then a probate is required.  Probate is required not only for a Will, it’s required when someone dies intestate (without a Will or a Trust). Probate in Arizona generally take about 6 months, at a minimum. The assets could be hung up for 6 months or longer before they are distributed to the beneficiaries and it is all accomplished with court oversight. With Probate, whether it’s an informal or formal probate, anyone who is a potential heir receives notice. During the notice process people can come out of the woodwork and challenge the disposition of the estate. If the person that died wanted that property to go to his or her three kids, people coming out of the woodwork can challenge the disposition, and that property may not find its way entirely to those three kids. That is one of the problems that can occur when someone passes away without an estate plan in place.

What Happens If Someone Dies Without A Will or Estate Plan in Place?

If someone dies without a Will or an estate plan in place, it’s known as dying intestate. Generally, that term applies to dying without any type of estate plan in place.  Briefly, dying without an estate plan in place means dying without a Will, without a Trust, without Joint Tenancy deeds and accounts or without beneficiary designation accounts in place.  If someone dies intestate, not only do you have a probate, but the court determines, by statute, who the personal representative will be for that probate and, again by statute, who will be entitled to inherit the property left behind by the deceased person. The deceased person, known as the decedent, gave complete control over their estate to the Court and the statutes of the State of Arizona when they elected not to have even a simple estate plan in place.  By contrast, if someone dies with a Will or some type of estate plan in place, they get to name the personal representative or representatives and they can control the disposition of their property instead of giving all the control to the Court and the statues of the State of Arizona regarding who the personal representative will be and how their estate will be divided.

 

What Are the Basic Items in An Estate Plan?

The first item in an estate plan is a Will.  A Will creates an orderly disposition of the estate and determines who will inherit your estate, not the Court and the statutes of the State of Arizona.  In a Will, the person making the Will, known as the Testator, determines who the personal representative or who the personal representatives of their estate will be. The personal representatives are people that the person making the Will trusts. Personal representatives might be family members, friends, or they could be an organization or a corporation.  With Court oversight, the personal representative pays the bills of the estate and makes sure that the remaining portion of the estate is distributed according to the wishes of the person who made Will.  One of the disadvantages of a Will is the probate process.  Probate is required to ensure that the Will is valid, the bills are paid, creditor claims are addressed and the remaining assets, that are part of the Will, are distributed to the proper people.  The Court is involved in the probate process every step of the way.

If necessary, individuals or couples can develop a Trust as part of their estate plan.  A Trust does essentially the same thing a Will does. It creates an orderly disposition of the estate.  The parties making the Trust place their assets (property) in the Trust and create a set of instructions for distribution of the assets to the proper people after their passing.  Then, the person or people named as successor trustees ensure that the assets are distributed according to the Trust plan.  One of the advantages of a Trust is that it avoids the probate process. Another advantage is that it’s not made public.  A Will and the documents necessary for the probate process are available to the public in the courthouse where the probate documents are filed.

Powers of Attorney are other basic items necessary in an estate plan.  Powers of Attorney are generally of 2 types; (1) a Durable Financial Power of Attorney, which allows a person (the Principal) to choose the person or people that will make financial decisions for the person making the Power of Attorney in the event that person is incapacitated or suffering from the effects of mental illness, dementia, etc., and (2) a Healthcare Power of Attorney, which allows a person (the Principal) to choose the person or people that will make healthcare decisions for the person making the Power of Attorney, in the event that person is incapacitated or suffering the effects of mental illness, dementia, etc.  Powers of Attorney are necessary to avoid the expense, complications and loss of control that arise when a person becomes incapacitated and does not have Powers of Attorney in place.  In the absence of Powers of Attorney, your family may have to spend thousands of dollars on an attorney, so they can go through the legal process of obtaining a Guardianship and/or a Conservatorship to get Court orders that allow someone else to make financial and medical decisions for you.

Another item necessary in a basic estate plan is a Living Will.  A Living Will authorizes medical personnel to withhold mechanical means of life support in the event that a person is in a coma that they will not recover from or if they are in what is known as a “persistent vegetative state.”

 

What Factors Generally Cause Probate to Happen?

Probate is not always necessary in Arizona when a person dies.  When a person dies in Arizona without a Will (Intestate) a probate is necessary to transfer the assets of the estate to the heirs.  When a person dies in Arizona with a Will (Testate) a probate is necessary for the same reason, to transfer the assets of the estate to the devisees.

Probate is also necessary in Arizona to allow creditors to bring their claims against the deceased person’s (known as a decedent) estate.  The Personal Representative publishes a Notice to Creditors in the newspaper for 4 months to notify creditors of the decedent’s death.  The creditors then have those four months to assert their claims against the estate.  Once claims are asserted against the estate by the creditors, the Personal Representative determines whether the claims will be paid or dismissed.    If a creditor does not bring a claim forward during the four-month period, Arizona law prevents the creditor from bringing the claim forward in the future.

How Can Someone Avoid Probate in Arizona?

Normally, there are 3 ways to avoid probate in Arizona.  The first way is a Trust. Trusts are not subject to probate. The second way is to title property as Joint Tenants with the Right of Survivorship.  Titling property this way means that when one of the Joint Tenants dies the surviving Joint Tenant owns the entire property by operation of Arizona law.  The third way is to title accounts as beneficiary designation accounts.  401(k)’s, IRA’s and Life Insurance are common examples of beneficiary designation accounts.

Why Is It Recommended for People to Try and Avoid Probate?

Probate is a time-consuming process under Arizona law.  An uncomplicated informal Arizona probate will generally require five to six months to complete.  The reason for the five to six-month time frame is because the Personal Representative must publish a Notice to Creditors in the newspaper for 4 months, see above.  Complicated probates and formal probates can take longer.  In the extreme, if the Will is contested and trial is necessary, a formal probate could take two years, maybe longer.

Another reason for people to try and avoid the probate process is because the process is public.  All the documents related to the probate are available at the courthouse in the county in which the probate is filed.

 

How Does the Divorce Process Work in Arizona?

The divorce process begins when one of the parties to the marriage files a Petition for Dissolution of Marriage with the Court.   The filed Petition must be served on the filing party’s spouse.  If the spouses are not communicating, then the other spouse may be served by a licensed process server or sheriff’s deputy.  If the party to be served is willing, that spouse may be served using an Acceptance of Service, which is a form signed by the spouse being served.  The signed Acceptance of Service is then filed with the Court.   The Acceptance of Service is the cheapest and easiest way to serve someone in Arizona.

Once served, the spouse receiving the Petition must file a written response with the Court within 20 days if served in Arizona or 30 days if served outside of Arizona.

If the spouse that was served with the Petition does not file a written response with the Court within either the 20 days or 30 days, then the Court may enter a default against that spouse and issue a Default Decree of Dissolution without notice to that person.

At least one of the parties must have lived in Arizona for 90 consecutive days to file the Petition.

In Arizona both parties must wait a minimum of 60 days before the Decree of Dissolution can be signed by the Judge.  The 60-day period begins when the other spouse has been properly served.

If the spouse being served files a written response to the Petition within either the 20 or 30 day period, then the parties move through disclosure/discovery and mediation – if minor children are involved and parenting time is an issue.  If they are able to reach agreement on all issues, then they may submit a Consent Decree of Dissolution of Marriage to the Judge for signature.  Once the Judge signs the Consent Decree and it is filed the parties are divorced without having to go to Court.  If the parties are unable to agree on all issues, then they will go to Trial on the unresolved issues and the Judge will decide the issues upon which the parties are unable to agree and grant the Decree of Dissolution of Marriage.

 

What Is the Process of Getting A Divorce in Arizona?

The divorce process begins when one of the parties to the marriage files a Petition for Dissolution of Marriage with the Court.   The filed Petition must be served on the filing party’s spouse.  If the spouses are not communicating, then the other spouse may be served by mail, a licensed process server or a sheriff’s deputy.  If the party to be served is willing, that spouse may be served using an Acceptance of Service, which is a form signed by the spouse being served.  The signed Acceptance of Service is then filed with the Court.   The Acceptance of Service is the cheapest and easiest way to serve the other spouse.

Once served, the spouse receiving the Petition must file a written response with the Court within 20 days if served in Arizona or 30 days if served outside of Arizona.

If the spouse that was served with the Petition does not file a written response with the Court within either the 20 days or 30 days, then the Court may enter a default against that spouse and issue a Default Decree of Dissolution without notice to that person.

At least one of the parties must have lived in Arizona for 90 consecutive days to file the Petition.

In Arizona both parties must wait a minimum of 60 days before the Decree of Dissolution can be signed by the Judge.  The 60-day period begins when the other spouse has been properly served.

If the spouse being served files a written response to the Petition within either the 20 or 30 day period, then the parties move through disclosure/discovery and mediation – if minor children are involved and parenting time is an issue.  If they are able to reach agreement on all issues, then they may submit a Consent Decree of Dissolution of Marriage to the Judge for signature.  Once the Judge signs the Consent Decree and it is filed the parties are divorced without having to go to Court.

If the parties are unable to agree on all issues, then they will go to Trial, and the Judge will decide the issues upon which the parties are unable to agree and grant the Decree of Dissolution of Marriage.  Once the Decree of Dissolution of Marriage is filed with the Court Clerk, the parties are divorced.

Are There Any Benefits to Filing for Divorce Before Your Spouse?

If you have a choice and you’d like to be the petitioner in the action, then you should file first.  Filing first usually means that you get to present your case first in court.

Does It Impact Spousal Support or Custody in Any Way?

No, filing first as the Petitioner in a Divorce or responding to a Divorce Petition as the Respondent doesn’t affect a party’s legal rights.

Why Should A Couple Hire Different Attorneys to Handle A Divorce?

In a divorce situation the parties’ interests are in conflict. Technically, under the ethical rules, attorneys are not supposed to represent two clients whose interests are in actual conflict, unless the parties give their consent, in writing.  The rule is in place because it is not fair to the two parties involved in the divorce to have one attorney try to represent both of them.  In many cases there is too much conflict, acrimony and negative emotion between the parties for any one person to represent their respective interests properly.  If the parties are amicable and can work together to achieve a fair and reasonable result between them, then it may be appropriate for one attorney to represent both of them.   However, that situation is more often the exception rather than the rule.

 

Is Mediation Better Than the Court Process in A Divorce?

Yes, mediation is always better than the court process. Generally, in Pima County, in a divorce where kids are involved the Court will normally have them work through court-ordered mediation to resolve issues of parenting time and legal decision-making.  If the parties cannot resolve their issues in mediation, then the parties will take the un-resolved issues to trial and let the judge determine how those issues will be decided.  If the parties cannot resolve community property issues or issues of spousal maintenance, then they can agree to hire a private mediator in the community to try to resolve those issues.  If they cannot resolve the issues in mediation, then, again, they will take the un-resolved issues to trial and let the judge determine how those issues will be decided.  In many cases mediation can resolve the issues between the parties far cheaper, with much less stress and sooner than they can resolve the issues at trial.  And, parties sometimes find that they get the same result or a similar result after trial that they could have achieved in mediation.

What Are Some Reasons That One May Seek A Post-Divorce Modification?

If we’re talking about the modification of a child support order or a spousal maintenance order, it’s usually going to be because someone’s income increased or decreased.  An increase or decrease in income can happen for various reasons.  One party may have been promoted or found a new job that pays significantly more money.  Or, one party may have lost a job or had to reduce their working hours for some reason.  Regarding spousal maintenance, one of the parties may have remarried which will terminate spousal maintenance, but only after the paying party (obligor) seeks a modification of the spousal maintenance order in court.

What Are the Different Types of Child Custody Arrangements in Arizona?

Arizona now calls custody parenting time.  Parenting time ranges from equal time sharing (50-50 parenting time arrangements) to every other weekend arrangement and anything in between that the parties can agree to or that the judge will impose.

 

How Does the Court Decide Custody Matters in Arizona?

In Arizona the custody statute says the court has to consider 11 things when dealing with custody matters or parenting time matters. The court has to consider things that could affect the child’s best interests, like how well they adjust to the home, school and community, the nature of their past, present and future relationships, the relationship between the child and siblings, and the relationship between the child and their parents, among other things.  In making the determination under the statute the court will always consider the best interests of the child.

There are other factors involved. If the child is old enough, he or she could be interviewed about his or her wishes. The court will consider the physical and mental health of everybody. The court will also consider which parent’s going to allow frequent, meaningful and continued contact with the other parent. The court wants to make sure that the primary residential parent is not going to restrict the other parent’s parenting time. More importantly, the court will want to make sure that the child will not be prevented from seeing the other parent. They want a primary residential parent who is going to allow and promote contact between the child and the other parent. The court will consider whether one parent intentionally misled the court to cause an unnecessary delay or increase in the cost of litigation.  The court will also consider whether or not there has been past domestic violence, whether or not parenting classes have been completed, and whether or not there has been any parental coercion. The court will then consider whether a parent was convicted of an active false reporting of child abuse or neglect.  Basically, those are the factors the court has to work through.

There are other pieces of that statute that come into play when they determine sole or joint legal decision-making parenting time. Another thing that will affect one parent’s parenting time is domestic violence by itself. Domestic violence is like alcohol. The court can restrict parenting time or suspend it until the domestic violence issues have been worked through. There is a statute that gives the person time to work through the domestic violence issues and prove to the court that it won’t happen again, that they have taken steps to prevent it, that they are taking classes, and that they are being counseled. Domestic violence, alcohol and/or drugs can interfere with a parent’s parenting time.

Is There Any Age Where A Child Can Decide Who They Want to Live with In Arizona?

Yes, one of the factors that the court considers in making a determination regarding parenting time under the statute is the child’s wishes. The court will consider the child’s wishes regarding parenting time, assuming the child is old enough.  The parenting time determination includes which parent the child would rather reside with and how much time they want to spend with a parent.   In Arizona, the child’s wishes are considered once they turn 12 years old. One of the Arizona statutes regarding children says the court can interview a child about their wishes with regard to the parenting time decision.   I have seen judges interview the kids, but it’s pretty rare. In most cases, the judge will ask the court affiliated Conciliation Court interviewer to take care of the interview with the child, then submit a report to the judge.

 

How Is Child Support Determined in Arizona?

In Arizona, child support is determined primarily by the difference in income between the parents and some other factors.  The calculation is made using a one-page Excel spreadsheet. The first big factor is income. The court will consider each parent’s gross monthly income and the difference between the incomes on the spreadsheet and come up with a number. The court will also consider medical insurance. If one parent is working and has an employer-sponsored insurance plan, then the cost to insure the child or children for that parent is placed on the spreadsheet. Another factor the court considers is how much parenting time each parent has.  In an equal parenting time arrangement if both parents’ incomes are similar then the child support amount may be fairly nominal.  But, if one parent only has every other weekend with the kids, then child support amount would be somewhat higher.

There are smaller factors that will affect the calculation. For example, the calculation will be changed if a parent gets married or divorced. If one parent has another child with a new spouse, then they would get a deduction for a natural child of another relationship or if a parent has a child under 18 from a previous relationship, they will get a deduction from the basic child support obligation for that child. But the number one factor is the difference in income between the parties.

If Parents Have Equal Parenting Time, Does Anyone Have to Pay Child Support?

It will depend on the difference in their incomes on a gross monthly income basis. If there is a very big gap between the two, then one of the parents will pay some child support. If the incomes are identical or close to the same, then there may not be any child support or child support may be minimal.

 

 

For more information on any of these matters, a free initial consultation is your next best step. Get the information and legal answers you are seeking by calling 520-389-5634 today.

Chris Caine, Esq.

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(520) 389-5634

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