ASK & WE ANSWER
FREQUENTLY ASKED QUESTIONS
Making a decision between a revocable living trust and a will comes down to your personal concerns and what you want to achieve with your estate plan.
A revocable living trust can be “undone” if you change your mind. It’s not necessarily permanent. If you elect to form a revocable living trust rather than write a will, you’re always free to reverse your decision later. You may not want to, however. This type of trust has some distinct advantages over a last will and testament.
The necessity of probate is a major distinction between a revocable living trust and a will.
Probate is a court-supervised process that’s required when someone dies leaving a will, or even if they don’t leave a will. The estate must pass to their heirs and beneficiaries, and probate is the legal process by which this is accomplished.
A revocable living trust does not require probate. It’s a private contract between you as the “trustmaker” or “grantor” and the trust entity. In most cases, a grantor serves as the trustee of their own revocable living trust, managing the property placed within it. A successor trustee steps in to take over when the grantor dies, settling the trust and distributing its property to the beneficiaries named in the trust documents.
When a will is submitted to the court to open probate, it becomes a matter of public record. Anyone can stop by the courthouse and read it. They’ll know what you owned and to whom you left it. No one other than the beneficiaries, and in some states, the heirs regardless of whether they’re beneficiaries, are entitled to see the trust documents.
You should always consult with an experienced attorney when drafting an estate plan to see what meets yours and your family’s needs.
A living trust is a type of trust created during a person’s lifetime. It’s designed to allow for the easy transfer of the trust creator or settlor’s assets, while bypassing the often complex and expensive legal process of probate. Living trust agreements designate a trustee who holds legal possession of assets and property that flow into the trust.
Living trusts are managed by a trustee who typically has a fiduciary duty to manage the trust prudently in the best interests of the trust’s beneficiary or beneficiaries designated by the trust settlor, also called a grantor. Upon death of the settlor, these assets flow to the beneficiaries according to the grantor’s wishes as outlined in the trust agreement. Unlike a will, however, a living trust is in effect while the settlor is alive and the trust does not have to clear the courts to reach its intended beneficiaries when the settlor dies or becomes incapacitated.
Living trusts can be irrevocable or revocable. With a living revocable trust, the trust settlor can designate himself or herself as the trustee and take control of assets within the trust. However, this stipulation means the assets in the trust remain a part of the trust settlor’s estate, meaning the individual may still be liable for estate taxes should the estate be valued beyond the estate tax exemption at the time of death. The trust settlor also has the power to change and amend trust rules at any time. This means the trust settlor is free to change beneficiaries or undo the trust altogether.
With an irrevocable living trust, the settlor relinquishes certain rights to control over the trust. The trustee effectively becomes legal owner, but the individual would also reduce his or her taxable estate. Once the trust agreement for an irrevocable living trust is made, the named beneficiaries are set and the settlor can do little to amend that agreement.
A living trust itself can be named the beneficiary of certain assets which would otherwise flow directly to the named beneficiary, regardless of what is stated in a will. These include employer-sponsored retirement accounts such as 401(K)s, individual retirement accounts (IRAs), life insurance policies, and certain bank accounts, such as Payable on Death (POD) accounts. Living trusts can include accounts held in trust, which are created during the settlor’s lifetime and are not established upon death as designated in a last will and testament.
Any divorce begins with one party filing a Petition for Dissolution. A Petition for Dissolution is usually a general document that states that you want a divorce. It includes the terms and conditions that you would like in the divorce.
This Petition must be served on the other party. This can be done with a process server or the other party may sign an Acceptance of Service. Either way, the other party must be served before a divorce officially begins.
Once served, the other party has 20 days if served in Arizona or 30 days if served outside of Arizona, to file a Response to your Petition for Dissolution. If they do not file a Response, you can file paperwork to have Default entered against them. The court will then give them an additional 10 days to file their Response.
From the time that you serve someone until a court will enter a final Divorce Decree, a minimum of 60 days must pass. Even if the person defaulted by failing to file a Response, you will have to wait the 60 days before a court will enter a Divorce.
If the other party Responds, you are now in a contested Divorce. The court will set an initial Resolution Management Conference. This is a preliminary hearing where the court will want to know what issues are contested and what issues are agreed upon. Depending on your disagreements, the court may send the parties to a Parenting Conference or Settlement Conference to provide an opportunity to resolve your case without court intervention. Ultimately, the court will set a trial on your case and if you and your spouse are unable to agree on the issues in your Divorce then a Judge will decide for you.
In many states, a party must allege specific grounds in order to file a Petition for dissolution. These could include Adultery, Desertion, or Irreconcilable Differences. Most states that require grounds for a divorce are “at fault” states. This means that one party must allege a reason for the Divorce and the court may apportion fault in the dissolution proceeding – often changing the allocation of assets or spousal maintenance based on this fault.
Arizona is a “no fault” Divorce state. This means that it is not required to allege grounds or fault for a Divorce. Arizona courts do not apportion or determine fault in a Divorce proceeding. The division of your assets or a determination of spousal maintenance will be made purely on the law and not on the fault of either party.
Yes, in fact either parent’s rights can be terminated. Termination cases can be very complicated and should only be started after consulting with an experienced attorney. To terminate a parent’s rights, two things must be proven:
- There must be grounds for termination
- The termination must be in the child’s best interests
There are several grounds for termination in the state of Arizona. The most common are abandonment (often requiring 6 consecutive months of no contact or support for the child), prolonged and continued abuse of drugs or alcohol, incarceration for a long period of time, and committing a felony that would make you unfit to parent (e.g., sex crimes, murder, etc.).
In addition to proving a ground for termination, you must also prove that the termination is in the child’s best interest. For most courts, this means that at a minimum there is a step-parent adoption that will be completed after the termination is complete. Additionally, you must prove that there will either be a benefit to the child for the termination or a detriment to the child if rights are not terminated.
Filing a termination case on your own can be precarious and difficult. These are complex cases, dealing with constitutional rights. The process and the outcome can be vastly improved with the assistance of an experienced attorney. Contact us today at Stuart & Blackwell to discuss whether you have a strong case for termination.
Many people believe that is easy to simply “sign your rights” away to a child and no longer pay child support. In most cases, it is only possible to do this when your ex-spouse or partner is in the process of completing a step-parent adoption with a new spouse. In that circumstance you can sign a Consent to the adoption and have your rights terminated. Only after the adoption has been finalized will your child support obligation terminate.
Foster adoption is typically much cheaper than private adoption. Your classes for foster licensing are provided to you at no cost. When the child becomes eligible for adoption, if certification for adoption is required, that process will also be provided to you at no cost. You may expend the daily living expenses of having a foster child in your care, although there is foster subsidy offered by the state to offset these expenses. If you are ultimately able to adopt the child from foster care, the Arizona Department of Economic Security will pay your attorney to complete the adoption. Additionally, you may qualify for an adoption subsidy and other benefits once an adoption is completed. In short, there is usually little to no cost to adopt an Arizona foster child.
There is no exact answer to this question. Every situation is unique and can have significant differences in how long it may take.
Typically with infants and toddlers, the court will seek a permanent solution quicker and will proceed through the Dependency process at a faster rate. Even in these circumstances, however, it is not unusual to be involved in the Dependency process for 6-12 months.
For older children, the court will often give the biological parents more time to reunify with their children. This results in cases that can last 12-18 months, if not longer.
Regardless of the age of the child, you should not expect to adopt quickly in a foster situation.
Residents of the state of Arizona can finalize their adoption in Arizona. If an Arizona expectant parent wishes to place her baby with prospective adoptive parents out of state, those adoptive parents must finalize their adoption in their home state.
For Arizona residents, the adopting person can be a single person, a married couple jointly adopting, or a married person adopting individually. Same sex couples may adopt in Arizona, but must be married to each other. Arizona does not permit unmarried persons to jointly adopt.
ICPC stands for Interstate Compact on the Placement of Children. Essentially, ICPC allows for the legal transport of a child from one state to another in a foster or adoption placement.
Once a child is available for adoption, whether at birth as an infant or as an older child, the adoptive parents will travel to the home state of the child to accept placement of the child. It is in that state that they wait with the child until the paperwork is completed and accepted by the ICPC offices in both the child’s home state and the adoptive parents’ home state. The completion time of ICPC can range anywhere from a few days to a few weeks.
Any adult in Arizona, whether married or single, can adopt; however, 2 single people cannot adopt a child together.
Arizona’s adoption laws require that prospective parents first be certified by the court. Certification requires that the parents file a detailed application with the court that includes an in-depth financial statement, as well as a physician’s statement that details their physical health. Further, the certification process requires that parents attend adoption orientation and training classes. The courts take Arizona adoptions seriously – the parents will be thoroughly investigated by either the court or an adoption agency. When determining whether someone is fit to adopt, the court takes several factors into consideration:
- A complete social history
- Financial status and stability
- Moral fitness
- Religious background
- Physical and mental health
- Any court actions against you regarding either child abuse or child abandonment
- The ability (including the ability of every adult member of a household) to successfully pass a fingerprint-based record check for criminal history
- Any other factors pertaining to one’s fitness as adoptive parents that the court, agency, or division deems relevant to the adoption
LGBT couples can adopt in Arizona.
First, one distinction that could come up is whether an LGBT person can adopt individually or with a married partner. In Arizona, both are permitted. An LGBT individual may adopt as a single person or an LGBT couple may adopt jointly.
Second, an individual can adopt their partner’s child, so long as the partners are legally married. This is often referred to as a second-parent or a step-parent adoption. It is a way for one parent to adopt the biological or legal child of the other parent and securing equal rights for both parents. The limitation on second parent adoptions in Arizona is that the parents must be married, whether they are straight or gay.
In sum, LGBT couples can participate equally in adoption in Arizona.
It is unlikely that you will ever adopt a baby for free. Even in family adoption situation or step-parent adoptions where the other party consents, you will likely spend some money on an attorney to help you finalize the adoption. The most cost-effective adoptions are usually through foster care or family adoptions.
Agreements regarding openness have many names such as Openness Agreement, Post Placement Contact Agreement, and Contact Agreement. Regardless of the name, you should understand what you are agreeing to do.
Occasionally, an open adoption is a verbal agreement between adoptive and birth parents to maintain contact. When this happens, there is not an enforceable contract regarding the openness agreements. In cases like this, the level of openness can change. At Stuart & Blackwell we have seen great success with these agreements when the adoptive parents feel such love and gratitude toward the birth parents that they want to ensure they see how the child is thriving and growing through the years.
Some states, including Arizona, allow for a legally binding Post Adoption Communication Agreement that is signed by all parties and submitted to the court to seek approval of that contract. Once that Post Adoption Communication Agreement is approved by the Court, it is enforceable, and all parties must comply with the agreements. All parties should feel comfortable about the agreements made before signing.
You can contact us to learn more about Arizona Post Adoption Communication Agreements so you can decide what level of openness is right for your family.
The short answer to this question is “yes.” Any individual over the age of 18, whether single or married or gay or straight, can adopt in Arizona. Two people who are not legally married cannot adopt a child together. You must be married to jointly adopt.
Call us today at (480)420-2900. We will arrange to meet with you at a time and place that is convenient for you. You do not need to come to us. We admire any pregnant woman who is brave enough to recognize that parenting may not be the right decision for her.
Your health insurance provider may offer transportation to medical appointments. If not, we will provide transportation to get you to and from any medical or counseling appointments.
The adopting parents pay all medical bills not otherwise paid by insurance or AHCCCS.
Your health and welfare during your pregnancy are of paramount importance to everyone concerned. Living expenses are approved by the court and depend on your needs.
You will create a budget with one of our attorneys and we will submit it to the court for approval. The court approves most reasonable expenses, such as rent, utilities, transportation, food, and other basic necessities. The court wants to make sure that you and your unborn baby remain healthy and safe.
This is not uncommon, and the adoption can proceed legally even if you do not know who he is or where he is. We do want you to be honest and discuss openly with your counselor, attorney, or caseworker everything you know about the father of your child. The more we know, the better we can help ensure your adoption plan is secure.
If you like, you may stay in contact with the family over the years through pictures and letters. Many adoptive parents are even willing to have visits with you after placement.
After you decide how much ongoing contact you want after you place your child for adoption, we will find adoptive families who want that same type of relationship so you can select the best family for you and your child.
Choosing a future and creating a family for your child, when you are personally unable to parent, is the most unselfish, courageous decision you will probably ever be called upon to make. Your family and friends will understand this when you explain it to them. Our counselor can help you with this conversation, too. We can also include them in a counseling session if you want to do that.
How much or how little involvement you want with the adopting parents is completely up to you. Many birth parents and adoptive parents start with emails, phone calls, or Skype calls to better get to know each other during the pregnancy. If you are comfortable, you can meet them for coffee or invite them to your medical appointments. If you are uncomfortable having contact with the adoptive family, you don’t have to. It’s your choice.
We will help you create a plan for communication during the pregnancy that works for you.
The cost of a private adoption that does not involve an agency for matching purposes may range from $8,000 to $40,000, but often averages between $10,000 to $15,000. Every adoption is different. Families who choose to work to do an independent adoption with a private attorney attorney typically take an active role in identifying the expectant mother they wish to work with and the child they hope to adopt.
Typical expenses for an independent adoption, in the United States, without an agency involved generally include:
- Attorney fees for the birth parents
- Attorney fees for the adoptive parents
- Medical expenses associated with the pregnancy and delivery of baby
- Living expenses to help with expectant mothers needs during pregnancy
- Counseling services for the expectant mother
IS IT NECESSARY FOR BIRTH PARENTS TO HAVE AN ATTORNEY?
The expectant mother who makes an adoption plan for her unborn child is the most vulnerable party to the adoption process and should be afforded the same legal protections as the adoptive parents. She is relinquishing all her constitutional rights to parent her own child. It is essential that she understand her rights, the adoption process and that she is educated about what adoption is and what adoption is not. Together, her attorney and her counselor will help her navigate this process and prevent unnecessary problems.
Her attorney will also assist with things like; assisting her with medical and social histories, obtaining medical records, coordinating the hospital plan, managing her living expenses, coordinating her counseling needs and handling the fathers’ rights in the case.
We pride ourselves on understanding our clients’ needs and taking the time to answer all of their questions so they can make the best possible decisions. Below is a list of common questions that our clients ask us. Please browse these FAQs to get answers to your questions or concerns.
If you don’t find the answer to your question, please call us at (480)420-2900 to schedule a time to talk or simply complete the short form you see here and we’ll get back to you quickly. There’s absolutely NO OBLIGATION for this FREE introductory meeting.