Wednesday, October 11, 2017

CAN MY TEXT MESSAGES BE A WILL?

A recent case in Australia answered the question of whether a text message can create a will.  The Court ruled that a decedent’s text messages, some of which were unsent, could constitute a will.  http://www.telegraph.co.uk/news/2017/10/11/dead-mans-unsent-text-message-accepted-will/.   Think about how much confusion (not to mention fraud) this could create if this was the law in Arizona. 

Courts would be called upon to discern between fake text messages and real ones.  Experts would be called on to decipher whether the text messages were created before the death or after.   Courts would need to decide whether the text messages were supposed to revoke existing estate plans or just amend an existing estate plan.  Courts would need to decide whether the text was just a note for a possible future will or an actual will.  The list can go on and on.  Thankfully, this is not the law in Arizona.

To create a will in Arizona is simple.  It requires doing one of the two options below:  

Holographic Will:  A testator, over the age of 18, can create a holographic will so long as he/she writes the will, in his/her own hand, and it is signed by the testator.  There is no need for the will to be witnessed or notarized. 

Standard Will: A standard will is a bit more complicated.  These types of wills must have the following:
A.    It must be in writing;
B.    Signed by the testator or signed by someone else in his/her conscious presence for the testator; and
C.    Witnessed by two witnesses who witnessed the testator’s signature on the will.

If you have not complied with each requirement, you have not created a will in Arizona. You will die “intestate,” meaning without a will.  Please note that under the Standard Will, I recommend that a testator have his/her signature notarized. 


Despite the simplicity of creating a will in Arizona, I recommend that you hire an attorney to create your will or estate plan.  It is one thing to create a will that the courts will review and attempt to decipher.  It is yet another, and much harder, to create a will that actually conveys your property without confusion and without unnecessary litigation.  

Tuesday, September 19, 2017

PROTECT YOURSELF FROM THEFT: CHOOSE THE RIGHT PERSON AS POWER OF ATTORNEY

Bad estate planning decisions happen all the time, even when you have a great attorney. One common mistake: Choosing the wrong person to be your power of attorney. A recent case in the news was a great reminder. http://www.channel3000.com/news/crime/power-of-attorney-charged-with-taking-using-mans-money-for-personal-use/607446161

In that case, a Wisconsin woman became an elderly man’s power of attorney. After time, she began to spend his money on herself. Using his power of attorney and his money, she paid her mortgage and other bills. After she done, there was nothing to pay his bills. What she did is a crime in Wisconsin and in Arizona. She is now facing six felony counts.

What this woman did is not unique. It happens every day all over Arizona. However, it is preventable in many cases. My advice is the following: Choose a power of attorney when you don't need one—when you have a clear head—and when you are still competent to make good decisions.  Once you need a power of attorney you may not be in a position to make well-reasoned decisions. 

When choosing a power of attorney, be honest with yourself.  Does the person have good judgement? Is there anything in his/her character that would suggest he/she is not trustworthy? If you cannot answer these questions positively, choose a different power of attorney.  A person who has a history of dishonest acts or bad financial decisions should not be your power of attorney.

If you cannot find someone to trust, get a professional fiduciary to be a power of attorney for you. The professional will pay your household bills, manage your finances, and take care of any other issue in your life.  Most of all, a licensed and insured professional will keep you from being victimized.

Monday, September 18, 2017

Equifax--Be Careful of Accepting Help From Equifax


I was asked to comment on the Equifax credit dispute.  Be careful of accepting the free credit monitoring service.