Self Settled Spendthrift Trusts

I generally believe that self settled spendthrift trusts (also called domestic asset protection trusts) are used more often than they should be. They are not a great asset protection vehicle, especially because of the new changes to the bankruptcy code that allows the bankruptcy trustee to look back 10 years. However, there are some good uses. One such use would be to essentially protect a person from himself or herself (i.e., to help conserve an asset or investment).

There is a new article about this topic on my website. Click here to see the article.

I hope this information is helpful. Paul Deloughery
(You can contact me directly by email at paul@delougherylaw.com or phone at 602-443-4888. For more information, visit www.delougherylaw.com)

The information in this blog is general in nature and is not intended to address any particular situation.

No Minimum Amount for Arizona Elder Abuse Claim

Here is an interesting fact. There is no monetary threshold for bringing an A.R.S. 46-456 claim in Arizona. There are two different prongs (paragraphs A and B) to that statute. If a person violates either prong (by any amount!) then the penalties apply. In other words, all it takes is for a person to retitle a car or withdraw $20from an ATM in violation of the statute to be totally disinherited, be subject to treble damages, as well as the other penalties in the statute. That's pretty severe stuff. The purpose is to scare away any potential offenders. (We can debate how well it actually works.)

Also, the statute is mandatory. There is no "the court may impose the following penalties" or any soft language like that. The penalties automatically apply.

If you have a question about whether someone has abused a vulnerable adult, please give me a call.

I hope this information is helpful. Paul Deloughery
(You can contact me directly by email at paul@delougherylaw.com or phone at 602-443-4888. For more information, visit www.delougherylaw.com)

The information in this blog is general in nature and is not intended to address any particular situation.

How Do I Make Sure I Get Notice of Court Proceedings in Probate?

If you have a financial or property interest in an estate, you may file what is called a "Demand for Notice" with the court at any time after the decedent's death. See A.R.S. Section 14-3204. If you file a Demand for Notice, you also need to mail a copy of it to the personal representative for the estate, if one has been appointed. (You should also mail copies to all of the other interested parties.)

Once you have filed a Demand for Notice, no order or filing may be made without giving you notice. Then, if the personal representative files anything with the court and then fails to provide you with a copy, he or she will be liable to you for damages. (In other words, you can get a judgment against the PR if you suffer a loss as a result of the PR not giving you notice.)

If you have any question about whether the PR is going to act responsibly, or if the estate is in any way contested, you should probably file a Demand for Notice. If you have any questions, please do not hesitate to call me.

I hope this information is helpful. Paul Deloughery
(You can contact me directly by email at paul@delougherylaw.com or phone at 602-443-4888. For more information, visit www.delougherylaw.com)

The information in this blog is general in nature and is not intended to address any particular situation.

My mother died without a will and stepfather is in charge

This is a common situation. By the way, the same issues arise if your father died without a will and your stepmother is now in charge of his estate. In this situation, you need an attorney. Under A.R.S. 14-2102, you are entitled to one-half of your mom's (or dad's) separate property and all of her (his) one-half of the community property from the marriage. So, the bottom line is that you are entitled to at least something. Figuring out what that something is, however, can get complicated.

You have probably heard of community property issues popping up in the divorce context. Well, the same happens in probate when there is no Will and there is a second marriage.

You need an attorney to represent you in this type of situation. I can help you and then get paid out of your portion of the estate.

I hope this information is helpful. Paul Deloughery
(You can contact me directly by email at paul@delougherylaw.com or phone at 602-443-4888. For more information, visit www.delougherylaw.com)

The information in this blog is general in nature and is not intended to address any particular situation.

Community Property Interest in Business

The recent case of Rueschenberg v. Rueschenberg, 1 CA-CV 07-0300, discused the community property element of one spouse's business interest. The case held:

"In essence, our community property laws transform the community into an equity partner with the sole and separate-property owning spouse to the extent the community's efforts have generated net earnings, increased the value, or otherwise increased the net worth and/or market value of the company. ... The community's share is not eliminated just because the laboring spouse has been paid a fair compensation along the way."

Thus, a spouse in a business now has a stronger claim that even she worked in her doctor, dentist or lawyer husband's office and received compensation for that work, she also has a community property interest in the business.

This case provides the opportunity to take a number of different positions as to the quantity and quality of the business owner's interest and as to the adverse affect on value of the interest because of the uncertainty of the extent of ownership or lack of ownership.

In short, just because the business owner's Will or Trust gives 100% of the business to someone other than the spouse does not mean that the spouse is left out. The spouse needs to find a lawyer and assert a claim for the community property interest. Hint -- this does not happen automatically. The spouse needs to see an aggressive probate or family law litigation attorney.

I hope this information is helpful. Paul Deloughery
(You can contact me directly by email at paul@delougherylaw.com or phone at 602-443-4888. For more information, visit www.delougherylaw.com)

The information in this blog is general in nature and is not intended to address any particular situation.