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Pursuant to Arizona Revised Statute 14-3971(D), the Motor Vehicle Division shall transfer title of a motor vehicle from the decedent to the successor or successors on presentation of an affidavit stating that thirty days has passed since the decedent’s death, and either (1) an application or petition for the appointment of a personal representative is not pending and a personal representative has not been appointed in any jurisdiction and the value of all personal property in the decedent’s estate is less than $50,000 as valued as of the date of death or (2) the personal representative has been discharged or more than one year has passed since a closing statement has been filed and the value of all personal property in the decedent’s estate is less than $50,000 as valued as of the date of the affidavit. In addition, the claiming successor must be entitled to the vehicle.
To make the transfer, you will need to turn in the certificate of title to the Motor Vehicle Division along with a certified copy of the decedent’s death certificate, Title and Registration Application form, and the Non-Probate Affidavit for Obtaining Title to the Vehicle of an Arizona Decedent which can be found here
A.R.S. 14-3971
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Tuesday, February 23, 2010
Saturday, February 20, 2010
Estate Planning Attorney Francis X. Morrissey, Jr. Has Been Disbarred
Photo Credit: daylife
On January 6, 2010, I wrote about Anthony D. Marshall, son of Brooke Astor, and his sentence of 1 - 3 years in prison for defrauding his mother as she suffered from Alzheimers. A co-defendant, Francis X. Morrissey, Jr., a lawyer who did estate planning for Mrs. Astor, was also convicted of a series of fraud and conspiracy charges, as well as one count of forging Mrs. Astor’s signature on an amendment to her will. That blog entry can be read in its entirety here
By operation of law, Francis X. Morrissey, Jr. (pictured above) has now been disbarred.
Matter of Morrissey
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Thursday, February 11, 2010
Types of Wills Recognized by the State of Arizona
The Arizona Code recognizes holographic wills, attested wills, and self-proved wills. To be valid, a will must comply with the execution formalities of either a holographic will or an attested will. A holographic will does not require witnessing, but it must be signed by the testator, and the material provisions (which would include the identity of the testator's property and the beneficiaries chosen to receive that property) must be in the testator's handwriting.
An attested will must be in writing and signed by the testator and at least two witnesses. The will does not have to be signed by the testator in the presence of the witnesses, and the witnesses do not have to sign in the presence of the testator or each other. However, the testator must then tell the witnesses that the signature on the document is, indeed, the testator's or that the document constitutes the testator's will.
Most attorneys continue to execute an attested will with greater formality by having the testator sign in the presence of two witnesses, who then sign the will in the testator's presence at his or her request, and in the presence of each other. This helps prevent any question about the validity of the will if it must be probated in another state.
The advantage of a self-proved will is most evident in the event of a will contest. Formalities of execution are conclusively presumed if a self-proved will is contested in a formal testacy proceeding. An attested will may be self-proved either at the time of the original execution or later. Regardless of when an attested will is made self-proved, the process involves an acknowledgment by the testator and affidavit of the witnesses before a notary public. There are statutory requirements regarding the content of the language that must be included at the end of the will if it is to be self-proved.
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An attested will must be in writing and signed by the testator and at least two witnesses. The will does not have to be signed by the testator in the presence of the witnesses, and the witnesses do not have to sign in the presence of the testator or each other. However, the testator must then tell the witnesses that the signature on the document is, indeed, the testator's or that the document constitutes the testator's will.
Most attorneys continue to execute an attested will with greater formality by having the testator sign in the presence of two witnesses, who then sign the will in the testator's presence at his or her request, and in the presence of each other. This helps prevent any question about the validity of the will if it must be probated in another state.
The advantage of a self-proved will is most evident in the event of a will contest. Formalities of execution are conclusively presumed if a self-proved will is contested in a formal testacy proceeding. An attested will may be self-proved either at the time of the original execution or later. Regardless of when an attested will is made self-proved, the process involves an acknowledgment by the testator and affidavit of the witnesses before a notary public. There are statutory requirements regarding the content of the language that must be included at the end of the will if it is to be self-proved.
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Arizona Homestead Allowance, Exempt Property Allowance, and Family Allowance
Under Arizona law, if the decedent was domiciled in Arizona, the surviving spouse can claim a Homestead Allowance in the amount of $18,000. If there is no surviving spouse, each minor child and each dependent child is entitled to an equal share of the $18,000. The surviving spouse is also entitled to an Exempt Property Allowance in the amount of $7,000. If there is no surviving spouse, each minor child and each dependent child are entitled jointly to the $7,000. Finally, a surviving spouse, as well as minor and dependent children, are entitled to a Family Allowance, which is a "reasonable allowance" for maintenance during the period of administration. Similar to owning a share in community property, this protects against disinheritance by the testator since they are rights conferred by statute. In addition, because these allowances take precedence over creditors' claims except expenses of administration, they can protect the family of the deceased against creditors.
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Monday, February 8, 2010
Lawyers On Call - Free Legal Advice for Arizonans
On March 2, 2010, the topic for Lawyers On Call will be tax law. See the State Bar of Arizona web site for more information.
State Bar of Arizona
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State Bar of Arizona
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Friday, January 29, 2010
Does Arizona Impose a State Estate Tax?
The quick answer to this question is no, the State of Arizona does not impose a state estate tax.
Before the Economic Growth and Tax Relief Reconciliation Act of 2001 (EGTRRA), every state in the United States imposed a state estate tax that, at a minimum, collected the amount of tax allowed as a credit for state death taxes by the federal government. EGTRRA radically changed the state estate tax regimes by eliminating the credit for estates of decedents dying after January 1, 2005.
The federal credit for state death taxes was a revenue-sharing arrangement between the federal government and the states. Because the amount of the credit was paid in tax (it was paid to the state to the extent the state imposed a state death tax equal to or in excess of the credit, or it was paid to the federal government as a part of the federal tax to the extent it was not paid to the state), the states enacted what is called a “pick-up” or “sponge” tax to pick up the portion of the estate tax that could be imposed on the state’s resident decedents without increasing the estate tax burden. The overall estate tax bill was neither increased nor decreased due to the pick-up tax; the tax bill was apportioned between the Internal Revenue Service and the state taxing authority. This was a popular approach as it required only a few sentences in the statute books, permitted the state revenue officials to rely on the federal audits of returns, and meant that the state death taxes were being taken out of monies that would have otherwise gone to the federal government.
In response to the changes in federal law (EGTRRA) that repealed the federal state death tax credit, some states have enacted laws that allow the state to continue to collect a state estate tax. Arizona, however, no longer imposes a state estate tax for decedents dying after January 1, 2005.
From Publication 900 - “Since the federal state death tax credit was the basis of the Arizona estate tax, Arizona effectively no longer had an estate tax after the federal repeal. Following the federal repeal, the Arizona legislature repealed the Arizona estate tax provisions (Laws 2006, Ch. 262, Section 3). Additionally, Arizona does not impose an inheritance or gift tax.”
Publication 900
Senate Bill 1170
Disclaimer
Before the Economic Growth and Tax Relief Reconciliation Act of 2001 (EGTRRA), every state in the United States imposed a state estate tax that, at a minimum, collected the amount of tax allowed as a credit for state death taxes by the federal government. EGTRRA radically changed the state estate tax regimes by eliminating the credit for estates of decedents dying after January 1, 2005.
The federal credit for state death taxes was a revenue-sharing arrangement between the federal government and the states. Because the amount of the credit was paid in tax (it was paid to the state to the extent the state imposed a state death tax equal to or in excess of the credit, or it was paid to the federal government as a part of the federal tax to the extent it was not paid to the state), the states enacted what is called a “pick-up” or “sponge” tax to pick up the portion of the estate tax that could be imposed on the state’s resident decedents without increasing the estate tax burden. The overall estate tax bill was neither increased nor decreased due to the pick-up tax; the tax bill was apportioned between the Internal Revenue Service and the state taxing authority. This was a popular approach as it required only a few sentences in the statute books, permitted the state revenue officials to rely on the federal audits of returns, and meant that the state death taxes were being taken out of monies that would have otherwise gone to the federal government.
In response to the changes in federal law (EGTRRA) that repealed the federal state death tax credit, some states have enacted laws that allow the state to continue to collect a state estate tax. Arizona, however, no longer imposes a state estate tax for decedents dying after January 1, 2005.
From Publication 900 - “Since the federal state death tax credit was the basis of the Arizona estate tax, Arizona effectively no longer had an estate tax after the federal repeal. Following the federal repeal, the Arizona legislature repealed the Arizona estate tax provisions (Laws 2006, Ch. 262, Section 3). Additionally, Arizona does not impose an inheritance or gift tax.”
Publication 900
Senate Bill 1170
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Tuesday, January 26, 2010
Fingerprinting Procedure for Non-Relative Seeking Appointment as Guardian of a Minor
In my previous post, I wrote about the requirement of a background check for non-relatives seeking appointment of guardianship of a minor, which includes fingerprinting. In this entry, I offer practical advice on the fingerprinting procedure.
1. The proposed guardian is to report to one of the following offices to be fingerprinted.
Maricopa County Sheriff's Department in Phoenix at 101 W. Jefferson Avenue. (Enter the East Court Building. The Sheriff's Office is directly across from the cafeteria.) Fingerprinting at this location is done on Mondays, Tuesdays, and Thursdays, from 9:00 a.m. to 2:00 p.m. The fee is $8.00 per card, and the card is provided for guardianship's only.
Phoneix Police Department, 620 W. Washington. Fingerprinting at this location is done on Monday - Friday, from 7:30 a.m. to 4:30 p.m. The fee is $6.00 per card, and the card is provided.
Preferred Info Services, 54 S. Center Street, Mesa. Fingerprinting at this location is done on Monday - Friday, from 8:30 a.m. to 4:30 p.m. The fee is $10.00 per card, and the card is provided.
NOTE: Your fingerprints must be submitted on a BLUE fingerprinted card.
2. Tell the clerk taking your prints that you need to be fingerprinted to be appointed guardian of a minor.
3. The cost of processing each fingerprint card is $24.00 payable by certified check, money order, attorney's check, cash (exact amount required), or personal check with return address and picture identification. Make your check/money order payable to the Maricopa County Treasurer. After the prints are taken, deliver the fingerprint card, your $24.00 check /money order for each fingerprint card, and a copy of your Petition for Appointment and Affidavit to Probate Court Administration, located on the first floor of the Old Courthouse, 125 W. Washington, Phoenix, where you will be assisted in completing the necessary information on the card.
4. A calendar clerk will schedule a hearing date at least eight weeks away, due to the length of time needed for both the Arizona Department of Public Safety and the Federal Bureau of Investigation in Washington, D.C. to complete a background check on the prints and return them by mail.
5. Be sure to leave the "Employer and Address" and "Reason Fingerprinted" section blank. Court Administration will complete these areas.
Disclaimer
1. The proposed guardian is to report to one of the following offices to be fingerprinted.
Maricopa County Sheriff's Department in Phoenix at 101 W. Jefferson Avenue. (Enter the East Court Building. The Sheriff's Office is directly across from the cafeteria.) Fingerprinting at this location is done on Mondays, Tuesdays, and Thursdays, from 9:00 a.m. to 2:00 p.m. The fee is $8.00 per card, and the card is provided for guardianship's only.
Phoneix Police Department, 620 W. Washington. Fingerprinting at this location is done on Monday - Friday, from 7:30 a.m. to 4:30 p.m. The fee is $6.00 per card, and the card is provided.
Preferred Info Services, 54 S. Center Street, Mesa. Fingerprinting at this location is done on Monday - Friday, from 8:30 a.m. to 4:30 p.m. The fee is $10.00 per card, and the card is provided.
NOTE: Your fingerprints must be submitted on a BLUE fingerprinted card.
2. Tell the clerk taking your prints that you need to be fingerprinted to be appointed guardian of a minor.
3. The cost of processing each fingerprint card is $24.00 payable by certified check, money order, attorney's check, cash (exact amount required), or personal check with return address and picture identification. Make your check/money order payable to the Maricopa County Treasurer. After the prints are taken, deliver the fingerprint card, your $24.00 check /money order for each fingerprint card, and a copy of your Petition for Appointment and Affidavit to Probate Court Administration, located on the first floor of the Old Courthouse, 125 W. Washington, Phoenix, where you will be assisted in completing the necessary information on the card.
4. A calendar clerk will schedule a hearing date at least eight weeks away, due to the length of time needed for both the Arizona Department of Public Safety and the Federal Bureau of Investigation in Washington, D.C. to complete a background check on the prints and return them by mail.
5. Be sure to leave the "Employer and Address" and "Reason Fingerprinted" section blank. Court Administration will complete these areas.
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