ASK A LAWYER: Out with the old and in with the new.

You learned last time that Phoebe L. Harris and I will be discussing various legal matters along with fellow attorney Andy Heideman and, through him, you have this year learned more about the new federal estate and gift tax regulations.

A new year. A fresh start, but oh how we wish we could sort through those boxes and files of old papers and records that have been calling for attention for so long.

If your tax records are more than three years old you should, of course, check with your tax preparer as to what records are necessary and what records should be discarded or shredded.

How about those old deeds and closing statements on properties long since sold, or the banking and brokerage records long since closed, including blank checks, cancelled checks and check registers? How about the file or envelope marked “estate planning documents”?

Only the most recent original documents, including amendments, should be retained, making sure that all pages are intact with signatures and seals as appropriate. Pencil, ink or highlighter notations may void an original document.

Please locate your Wills, Codicils to Wills, Powers of Attorney, Trust, Amendments to Trust, Promissory Notes evidencing personal loans, Prenuptial or Marital Property Settlement Agreements, Divorce or Legal Separation Decree(s), current deeds or signed contracts for purchase of timeshares, inherited oil, mineral or gas rights, and military service discharge records.

Copies of current estate planning documents are helpful only if they are complete duplicates of the fully executed originals. Blank copies, those marked “Draft,” and correspondence relating to same should be discarded.

Now that your original estate planning documents are organized, you may want to ask yourself (and any living parent regarding his or her documents) the following questions:

  • 1. How old are my documents?
  • 2. Where were the documents prepared and executed?
  • 3. Was the preparer a licensed practicing attorney?
  • 4. Is the preparer still in business?
  • 5. Who will my spouse, family, or friends contact upon my death or incapacity?
  • 6. Do I understand my documents and do they have any relevance to my present family, marital, physical, medical, or financial situation?

For example, if a trust, is it required to split upon a spouse’s death and, if so, why?

Your failure to plan is, of course, a plan to fail when you, your spouse, children, relatives, or friends will need legal authority upon death or incapacity.

Benjamin Franklin cautioned, “You may delay, but time will not.”

Fortunately, these columns are limited by the editor as a service to the reader and to the authors and our discussion will have to be continued until next time when we discuss effective and zooming defective authorship of estate planning documents.

Walter Henderson and Phoebe Harris will answer readers’ questions in print by e-mailing The Law Offices of Walter L. Henderson, P.C., are at 210 W. Continental Road, Suite 126, Green Valley, AZ, 85622. They also can be reached at 520-625-6811.

Walter Henderson

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