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 You may occasionally wonder about using online “Will kits” or software to produce estate planning documents. These kits are popular because they’re cheap. However, you risk subjecting your survivors to unnecessary legal fees to fix what often turns out to be incomplete or ineffective problematic documents.
Nothing Compares to Legal Experience
These programs cannot perform a detailed legal analysis of a user’s true estate planning needs. They also don’t address crucial planning issues such as if a child has problems with debt, is anticipating a divorce or has special needs.
Estate planning attorneys generally have detailed discussions with clients about their financial situation, goals and family relationships. Most reputable ones do not sell “cookie-cutter” planning documents. They customize estate plans to meet each client’s unique family goals and financial needs.
Here’s a short list of the “why nots” to help educate you on the risks associated with Will and Trust kits:
1. State Probate Laws Vary
Most estate planning kits don’t address variations in state law. Since there is no national probate code, a computer program or website cannot hope to replicate the knowledge of a qualified estate planning attorney who knows the intricacies of state law. What might be allowed in one state might not be allowed in others.
2. Undesired Results
Using a do-it-yourself Will or other estate planning kits may have undesired consequences. Defective forms or violations of state law are not apparent to most people when their documents are signed. It might be only after a death when such problems are discovered, which is too late to revise documents. Survivors may find that a Will devised from a kit does not accomplish what the deceased wanted and the local courts won’t allow changes. You may also be missing out on some wonderful planning opportunities, which the do-it-yourself kit didn’t acknowledge or offer, which may have served your family well.
3. Blended Families Bring Complexities
Many people have been married more than once, or they’ve had more than one relationship that produced children or brought with it step-children. When parents draft do-it-yourself documents leaving an estate to their “children,” legal chaos can ensue. It often takes a court to sort out what a parent actually wanted to accomplish. Do you want to leave your property to your entire extended family (stepchildren included), or merely to your biological children? There are usually many other issues as well that need to be discussed and resolved when creating an estate plan for a blended family.
4. Special Rules for Special Needs Children
An entire category of Trusts is designed to work within the complex rules and restrictions of government-managed disability benefits. Once again, do-it-yourself estate planning plans don’t account for these special rules. An improper distribution from a parent’s do-it-yourself estate plan could result in your child losing disability benefits, health insurance, educational benefits or an assisted living arrangement. It can also mean the disappearance of the child’s inheritance due to mismanagement or someone taking advantage of the child.
Avoid the Trap
An estate planning attorney can save you from the trap of a do-it-yourself estate plan. Will and Trust kits can seem like a great bargain, but the eventual cost for your family could be quite high. The old adage really is true – you get what you pay for. If you have a specific estate planning question or concern, please contact attorney Kenneth Barney at (480) 833-1113.
 You’ve probably heard the radio or TV ads for debt settlement companies. They promote services to consolidate debt and help you avoid bankruptcy. To give you an idea how this works, let’s say you have four credit cards totaling $20,000.00 in unsecured debt. The debt settlement company will claim that they can settle your debts for around $12,000.00, or about 60% of the total debt. They will charge you a fee equal to around 15% of your total debt, or about $3,000.00 for their services. This means that your total payment to settle $20,000.00 in debt is $15,000.00. To have the money available to negotiate the settlements, you will pay monthly payments to the debt settlement company of about $625.00 for approximately two years. During this time, the debt settlement company will recommend that you stop paying your credit cards so that you can make the monthly payments to them. By using a debt settlement company, there is no guarantee your creditors will settle or, even worse, they may decide to sue you. Additionally, debt consolidation may do little to save your credit rating.
If a creditor refuses to accept the company’s offer, you are still obligated to pay the debt. Just because a debt settlement company claims they can settle your debts, there is no guarantee that a creditor will agree to the settlement offered. When you stop sending money, your creditors get angry. Though you use a debt settlement company you can expect to receive collection calls or, your creditors may decide to sue you. If you are sued, the debt settlement company will not represent you in the lawsuit.
If you hire an attorney to represent you, the debt collectors may not contact you. If you file for bankruptcy, then no creditors may contact you or attempt to collect their debts. You may be better off if you file bankruptcy rather than choosing a debt settlement company. Every situation is different, and you should call for a free bankruptcy consultation to find out the best course of action. Call us at (480) 833-1113, we can help.
Arizona Rrevised Statutes § 28-797 makes it a violation to pass another vehicle in a school zone. Section 28-797(E) states that the maximum speed limit in a school zone is 15 mph. It is illegal to pass any vehicle in a school zone. Passing is defined as the front bumper of a vehicle passing the front bumper of another vehicle.
 One way to be protected from getting a ticket in a marked school zone is to give yourself additional travel time. Drivers in a hurry are more apt to pass the slowest moving vehicle in the school zone, which is a violation. These drivers are also prone to getting upset with other drivers traveling below the posted speed limit in a school zone. Do yourself a favor and either leave earlier than the posted school times or after the starting times of the schools you may be traveling past.
According to some news reports, LeBron James made a promise that he would win an NBA championship for the city of Cleveland. On July 8, the fulfillment of that promise evaporated when James announced his “decision” to play for the Miami Heat. Just like the fans in Cleveland, we all experience broken promises. But while sports fans cannot enforce an athlete’s promise to deliver a championship, the law does protect innocent parties to a broken contract. In many situations, such protection does not have to come through litigation.
When two people enter into a contract, they each make a promise to the other to perform in a certain way. For example, a salesman promises to deliver a product after the buyer fulfills his promise to pay money, or an employee promises to work a specified number of hours in the week in exchange for the employer’s promise to pay a determined salary. 
At the time they sign a contract, people generally do not expect or intend for these promises to be broken. Often, however, parties to a contract are like two characters in Thomas Hardy’s Jude the Obscure, whose “fundamental error” was “that of having based a permanent contract on a temporary feeling.”
Once a contract is broken, the parties will be wise to try to resolve the problem to the satisfaction of all. If this does not work, the victim of a broken contract can seek redress in a court of law. In many instances, litigation is not the most efficient way for resolving contract disputes. After personal communications between parties fail, a mediation (with a neutral third party who seeks to aid the parties in reaching a settlement agreement) or arbitration (where a neutral third party judges the case and renders a decision that can have the same binding authority as a court judgment) can help resolve the problem. These methods of resolution generally cost much less and are more efficient than an action in court. Because of the convenience of mediation and arbitration, an increasing number of contracts include provisions requiring the use of these methods before a party can file a lawsuit.
When entering into a contract, you may be wise to consider including a provision requiring mediation or arbitration in the event of a party’s broken promise. This is just one way a well-drafted contract can protect your rights and expectations. If you need help with this type of situation or any other legal matter call me today at (480) 833-1113.
Over the past decade, almost every state in the Union has enacted a “Move Over” law. These laws seek to reduce injuries to police officers and emergency personnel who are issuing citations or providing medical care on the side of the road. If you do not appreciate the frequent danger these men and women encounter during a simple traffic stop, then type “move over law” into the YouTube search bar. You will be amazed at the things you see.
“Move Over” laws require drivers to change lanes away from a parked emergency/police vehicle that has its lights flashing. If traffic flow prevents a safe lane change, then the driver must slow down sufficiently to permit safe travel alongside the vehicle. Arizona’s “Move Over” law, Arizona Revised Statutes §28-775(E) went into effect in 2005.
If you are unfamiliar with the concept of a “Move Over” law, I highly recommend you visit www.moveoveramerica.com. This website not only explains the law but also contains an interactive map of the entire United States detailing when each state’s law went into effect and the potential consequences for violating that law. While most states (like Arizona) consider the “Move Over” statute to be civil traffic in nature, meaning only a fine or traffic school, there are a few states that impose jail time and mandatory license suspension for violating this law – a handy bit of information to possess before embarking on summer vacation.
In addition to requiring drivers to move over for all parked emergency vehicles, many states require that for a tow truck that has its yellow lights flashing. In an extension of this concept, Senate Bill 1138 currently before the Arizona legislature would require drivers to move over for any vehicle – not just emergency vehicles – that is parked at the side of the road and displaying flashing lights, such as a driver who pulled over to change a flat tire.
We are pleased to announce our newest practice area – Bankruptcy. As we continue our rich tradition of commitment and excellence in meeting our clients’ needs, we are conscious that our nation is facing one of the most severe economic recessions in its history. National foreclosure and unemployment rates are reaching record highs. Consequently, thousands are forced into bankruptcy every month. Last year, the United States recorded a record breaking 1.4 million bankruptcy filings. Arizona led the nation with a 77% increase in filings in 2009 over its 2008 total.
To help our clients survive this economic downturn, we have assembled a capable and knowledgeable team to provide relief. Our bankruptcy department consists of attorney, Timothy Durkin, and paralegal Spencer Hale. As always, we offer outstanding service at a competitive price. We are pleased with the responses from our new clients as we have guided them to a financial fresh start, free from debt.
Despite being an effective, legal method of relief to those who stumble in troubled times, bankruptcy has long been unfairly characterized as an offensive act done by those who have no moral conscience. The social image of bankruptcy is so misguided that when honest, hardworking individuals face hardship in today’s economy, they may try to fix their financial situation through any alternative outside of bankruptcy. Some are so disgusted by bankruptcy that they give up just about everything to avoid bankruptcy.
Common tactics many debtors (those who owe the debt) employ to try to avoid bankruptcy include selling jewelry or taking advances or “temporary loans” against retirement plans. Business owners will often take out new loans only to pay off old loans. Sadly, the jewelry is typically sold for far less than its worth, the retirement plans are quickly diminished and never replenished, and businesses with no steady income are not able to sustain the revolving debt. These tactics only succeed in further ruining one’s financial future. Rarely, if ever, do they solve current financial problems.
Before trying these futile attempts at remedying a financial dilemma, the debtor must first recognize the gravity of the situation and not downplay the seriousness of the debt. Second, the debtor should evaluate all monthly income and expenses and make a concerted effort to reduce unnecessary expenses. If the debtor determines the debts cannot be sustained with current income, the debtor should contact our bankruptcy department to discuss options. There may be alternatives other than bankruptcy such as the anti-deficiency laws or short-sales. We understand that bankruptcy, though not necessary in all circumstances, can be an appropriate and powerful tool in bringing desperately needed peace of mind.
We can help you understand what steps are proper under the bankruptcy laws. With the proper planning, we can help you maximize the assets you retain after filing.
In most cases, we can even help you retain your home and car regardless of whether you still owe money on them. We can also help secure your future by helping you protect your retirement accounts.
Please do not wait until it is too late. Don’t be a victim of circumstances. Call us at (480) 833-1113. We can provide you with a free consultation in our office or over the phone.
After three decades in the criminal justice system, I have developed my own time-honored truths about the human soul. One of these truths is: There is something deeply disturbing about people who abuse animals. These types are definitely not the kind of people you want your son or daughter to date. People who abuse animals are downright sinister. And, like an iceberg, what little we see above the surface is a good predictor of the pending dangers lurking hidden below the surface.
Several years ago, I was hired to defend a teenage boy who was caught cutting the ears off a small cat. My case was composed of one count of animal cruelty and one very upset neighbor lady. This young man was not into drugs. He did not shoplift. He simply did not like cats with ears. In the quiet of an attorney-client interview, he not only admitted to several additional counts of uncharged cat mutilation, but also bragged about repeatedly punching out and terrorizing his younger sister.
Unfortunately, that one juvenile client was not unique in his demented thought process. Studies have shown that pet abuse can be a solid predictor of the presence of domestic violence. For example, one research group at Utah State University surveyed domestic violence shelters in forty-nine states and the District of Columbia.* That nation-wide research indicated the following correlations between animal cruelty and domestic violence:
| Percent of Respondents Answering “Yes” to Each Question
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| Questions |
Yes
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| Do women who come into your shelter talk about incidents of pet abuse? |
85.4%
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| Do children who come into your shelter talk about incidents of pet abuse? |
63.0%
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| In your experience with shelters, have you observed the coexistence of domestic violence and pet abuse? |
83.3%
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As a general rule, animal companions are good for us. Studies show that people with pets have lower blood pressure, live longer lives, and suffer from less anxiety. Yet, when the unthinkable happens and domestic violence erupts, family pets are often the first target. Abusive personalities understand and exploit the deep bond between pets and family members. Threatening the pet often causes the victim to stay for fear of what might happen to the animal if they leave.
Given the strong correlation between animal violence and people violence, one would think that animal cruelty would always be included in the list of acts deemed to entitle one to an order of protection. Yet, unfortunately, to date, only a handful of states have enacted such laws.
Recently proposed legislation in Arizona seeks to resolve this official shortcoming. Senate Bill 1087 would add “cruel neglect” or “cruel mistreatment” of animals as grounds justifying the issuance of an order of protection. Senate Bill 1085 seeks to expand the living entities that can benefit from an order of protection. Not only could a battered wife include her children, but if passed into law, Senate Bill 1085 would also let a court issue specific orders that would protect the family pet as well.
Personally, I would have no problem with a judge issuing an order of protection because my client cut the ears off a cat. Yet, as a seasoned litigator, I am always a little nervous that new legislation intended to solve one societal ill is going to get misused by those that were not the intended beneficiaries. For example, the statutory definition of “animal” is not limited to mammals. “Birds, reptiles and amphibians” are also covered. Thus, I have little doubt that sometime in the future, a jilted ex-lover will improperly seek an order of protection. While she has never been the victim of violent behavior and is simply ticked-off beyond reason that her scumbag boyfriend has cheated on her for the twelfth time, I can see her claiming that a failure to feed her pet python amounts to cruel neglect and, thus, entitles her to the order she seeks.
I can only hope that sound judicial discretion will prevail in such cases. In my mind, animals are not more important than people. Yet, if one type of cruel behavior is an excellent predictor of an even worse kind of violent behavior, wisdom dictates that we use that knowledge to keep innocent people safe.
If you need legal advice, give me a call at (480) 833-1113 to set up an appointment.
* The Abuse of Animals and Domestic Violence: A National Survey of Shelters for Women Who Are Battered”. By Frank R. Ascione, Ph.D, Claudia V. Weber, M.S., and David S. Wood, Utah State University, Logan, Utah. Society and Animals, 5(3): 205-218. 1997
The short answer is it depends. A deficiency judgment is created if, after the foreclosure sale, the sale proceeds are less than the indebtedness. Whether the lender can pursue the borrower for a deficiency judgment depends on the type of loan and security used i.e. a deed of trust or mortgage. Generally, if the real property is: 1) 2 ½ acres or less; 2) has a singly family or two family dwelling constructed on it and 3) is at least occupied occasionally by the owner or a third party, a lender will not be able to pursue a borrower for a deficiency judgment. If the real property does not fit the criteria, then the lender may pursue a deficiency judgment as allowed by law. While seemingly straightforward, given Arizona’s statutory framework and the variety of lending situations, it is not always the case. The following is intended to answer some frequent questions.
May a lender pursue a deficiency judgment after foreclosure on real property used as a rental or investment?
If the property meets the above criteria and the loan was used to purchase the home, the lender may not pursue a deficiency judgment. Further, if the loan was used to purchase the home, the lender may not waive its security in the home and sue the borrower on the loan or promissory note.
May a lender pursue a deficiency judgment after foreclosure on a home where the purchase money loan was refinanced?
Generally no, but it may depend on the use of the funds from the refinanced loan. “Purchase money loan” means that the loan was used to pay all or part of the purchase price and the loan was part of the same transaction to purchase the land. If the refinance loan proceeds are greater than the remaining balance of the original purchase price, a lender may be able to pursue the borrower for repayment of the unpaid portion of the loan not used for the purchase.
After foreclosure of the first lien deed of trust, may the lender pursue the borrower on a home equity loan secured by a second deed of trust?
If the second deed of trust or mortgage was used to purchase the property, then no. If the proceeds from the second loan were used for other purposes, then the lender may pursue the borrower for the unpaid balance on the note.
We recommend that you consult with an experienced real estate attorney to determine your rights as either a lender or borrower. Call me at (480) 833-1113 and I will be glad to discuss your personal forclosure situation.
Most estate planning practitioners presumed, myself included, that the Economic Growth and Tax Relief Reconciliation Act of 2001 (EGTRRA), which repeals the death tax, would never make it to 2010.
Although the House passed new estate tax legislation in December of 2009, with legislation on its agenda more pressing than the estate tax, including the economy and health care, the Senate failed to make the estate tax legislation a priority and thus the estate tax expired on January 1, 2010.
This failure has left estate planning practitioners and their clients in a state of flux and possibly confusion. As it stands right now 2010 is the first year since 1916 where a wealthy American can die without paying any estate tax.
Although we cannot predict what Congress will do with regard to the estate tax laws, I believe one of the following three things will happen:
1. The House and Senate may work together and establish comprehensive changes to the estate tax laws, solidifying the estate tax rules for the foreseeable future. Although there have been many plans proposed by both political parties, the likelihood of the House and Senate agreeing on one during the next nine months may be unrealistic.
2. There have also been rumors that the House and Senate may attempt to pass a two year “patch” of these tax rules, which would reinstate the old 2009 estate tax laws. This reinstatement would bring back the estate tax, but allow citizens a $3.5 million exemption, along with the 2009 45% tax rate for assets passing to loved ones over and above $3.5 million.
3. Although not previously thought possible, Congress may decide to do nothing. Under the 2001 EGTRRA tax legislation, if Congress does nothing, the entire 2001 tax legislation “sunsets,” and we will revert back to the pre-2001 Clinton era tax legislation. Under such legislation, citizens will be given only a $1.0 million exemption, with the top estate tax rate returning to 55%.
Changes are coming. Be sure to keep up to date with the changes to these tax rules as they are passed into law by contacting your estate planning attorney or tax advisor.
If you have any questions regarding family based estate planning or any other legal issues, please do not hesitate to call the attorneys at Rowley, Chapman, Barney & Buntrock, Ltd. (480) 833-1113. Kenneth C. Barney is a partner with the law firm of Rowley, Chapman, Barney & Buntrock, Ltd..
“I just need some space in the relationship and a chance to think things over.” If you have not heard this in a relationship you may know someone who has. While sometimes “space” can help a relationship, when there are children involved and space “space” means your spouse and children traveling to a different state to “think things over,” you cannot be too careful. What happens if your spouse decides to file for divorce in the other state? Which state will have jurisdiction over the divorce and decision regarding the custody and parenting time your children? Will your children ever come back to Arizona?
Sadly, I have seen many of these cases and the answer to most of these questions comes down to a time. The length of time a person must be domiciled in a state before the state has jurisdiction in a divorce varies according to the laws of the state. In contrast, the length of time a parent must be domiciled in a state before that state has jurisdiction to determine child custody and parenting time is determined by the Uniform Child Custody Jurisdiction and Enforcement Act (“UCCJEA”). According to the UCCJEA, a child’s “home state” is defined as the state where the child has lived with a parent for six consecutive months prior to the commencement of the proceeding.
For example, say a family has lived in Arizona for five years. The husband takes the child to Colorado. So long as the husband has not been in Colorado for more than six consecutive months with the child, then the wife can file in Arizona, and Arizona will likely hold jurisdiction over the child custody and parenting time portion of the divorce.
This is only a basic example of the UCCJEA. The UCCJEA is far from simple, and depending on the exact circumstances of the case, the outcome can vary. If you or someone you know is faced with such a situation, I highly recommend speaking with a lawyer with extensive UCCJEA experience.
Many of the cases I have handled have resulted in happy reunions of a worried parent with his/her children. But often the timing has been very close. If your spouse is wanting out of state “space” with the children, you need to think carefully before allowing this to happen. The results of a few months of “space” may have long lasting effects in your and your children’s lives. If you need help please contact me at (480) 833-1113.
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