McNemar Law Offices, P.C.

Phone:  (602) 265-3971
Fax:  (602) 266-7744

Practice Areas

Estate Planning

We can help you create an estate plan to transfer your property to your loved ones in an orderly fashion upon your death. An estate plan can help your family avoid probate after your death, can minimize or eliminate any taxes that must be paid upon your death, and can provide for the orderly transfer of the care of your assets if you become incapacitated in the future. Documents that will we consider when preparing an estate plan for you are the Revocable Living Trust Agreement, Last Will and Testament, General Durable Power of Attorney, Health Care Power of Attorney, and Living Will.

If you are an Arizona resident when you die and you do not have any sort of estate plan, state law determines what happens to your assets upon your death. In order to make the decision of what should happen to your assets yourself, you need some sort of estate plan.

Revocable Living Trust Agreement

The Revocable Living Trust Agreement is a popular estate planning tool in Arizona. It has three primary purposes. First, it avoids probate upon your death if your assets are re-titled into the name of the trust. Second, if you are married, it minimizes or eliminates any estate tax that might otherwise be due upon your deaths. Third, it provides a trusted loved one or family friend the authority to manage your affairs if you can no longer take care of them yourself.

A Revocable Living Trust Agreement is fully amendable or revocable during your lifetime. You will retain full control over the trust and any assets that you place in the trust while you are alive.

You will be the Trustor, the Trustee and the Beneficiary of the Revocable Living Trust. If you are a married couple, you will likely be the Co-Trustors, Co-Trustees and Co-Beneficiaries of the trust. The term “Trustor” is just a legal name for the person who sets up the trust, but the Trustor also has the authority to amend or revoke the trust. The “Trustee” is the person or organization that manages and controls any assets that are owned by the trust. The Trustee is required to comply with the terms of the Revocable Living Trust Agreement when exercising their authority. You will name the person who will serve as Trustee after you are no longer able to serve yourself. The Beneficiary is the person who is entitled to the benefit of the trust. While you are alive, the trust will be for your benefit. After your death, the trust will designate how the trust property should be divided and those persons or organizations will then become the Beneficiaries.

A Revocable Living Trust Agreement is only effective to avoid probate if either your assets are titled in the name of the trust or if the assets become subject to the trust upon your death. For example, your home and bank accounts should be titled in the name of the trust if probate of those assets is going to be avoided. As an example of assets that would become subject to the trust upon your death, we will likely recommend that the trust be named as the beneficiary of your life insurance policies so that the proceeds are paid directly into the trust upon your death.

The Revocable Living Trust Agreement is a useful tool, but it isn’t for everyone. One of the objectives of our early consultations will be to determine the right estate plan for you. We can help you review your objectives and find the right estate plan to fit your needs.

Last Will and Testament

The Last Will and Testament is the legal document most often used in estate planning. There are specific legal requirements governing Wills and how they need to be signed and witnessed. In effect, the Will is your instructions to the probate court about what you want to have happen to your assets and who you want to wind up your affairs.

Unlike a properly drafted and funded Revocable Living Trust Agreement, a Will requires probate to be effective. If you only have a Will and do not have a Revocable Living Trust Agreement, it may be necessary to probate your estate.

Moreover, a good estate plan will include a Will even if you have a Revocable Living Trust Agreement. The simple reason for this is that sometimes assets will not be properly funded into your Revocable Living Trust during your lifetime. A common example is the person who opens a new bank account but forgets to title the new account in the name of the trust. In that situation, the Will will direct that any assets that are not already in the trust will be transferred to the trust upon your death. We call this type of Will a “Pourover Will”.

We can help you with the preparation of your Last Will and Testament.

General Durable Power of Attorney

A General Durable Power of Attorney is a document that appoints a person to handle your financial affairs. We recommend that you have a General Durable Power of Attorney in case you become incapacitated later in life. If you are unable to handle your own business affairs, the person that you appoint in your General Durable Power of Attorney document will be able to handle matters for you.

If you do not have a General Durable Power of Attorney and you become unable to handle your own business affairs, it will be necessary for someone to go to Court and ask to be appointed as your Conservator. This is a time-consuming and expensive process and the person who will be appointed as your Conservator may not be the person that you would prefer. A Conservatorship can almost always be avoided with a properly executed General Durable Power of Attorney.

We can help you by preparing a General Durable Power of Attorney for you and with helping you select the right person to be your agent.

Health Care Power of Attorney and Living Will

The Health Care Power of Attorney is a document that appoints a trusted person to make medical decisions for you if you are not able to make them yourself. We recommend that you have a Health Care Power of Attorney in case a medical decision needs to be made on your behalf at a time when you are not able to make the medical decision yourself. A well-drafted Health Care Power of Attorney will allow the person you name to make any kind of medical decision for you.

A Living Will states your decision about whether you would want life support to be started or continued if you are in a terminal condition or irreversible coma. Many people indicate that they would want life support discontinued if doctors found that they were in a terminal condition or irreversible coma.

If you do not have a Health Care Power of Attorney or Living Will and medical or end-of-life decisions need to be made for you, it will be necessary for someone to go to Court and be appointed as your Guardian.

We can help you by helping you decide what treatment decisions should be made if you cannot make them yourself and by preparing a Health Care Power of Attorney and Living Will.


Probate is the legal process in which your final affairs are wound up after your death and your remaining assets are distributed to your beneficiaries. Arizona uses the term “Personal Representative” for the person who is responsible for managing your probate estate, but almost every other state calls that person the “Executor”.

Following your death, the Personal Representative has many duties, but the duties generally break down into three broad categories: (1) Collect your assets that are subject to probate; (2) Pay any of your outstanding bills (including estate or income taxes); and (3) Distribute any remaining assets to your beneficiaries.

Probate proceedings are overseen by the court. Sometimes your Personal Representative must appear before a judge to be appointed, but often the appointment can be made without a court appearance by simply filing documents with the probate registrar.

A typical probate must remain open for a minimum of four months. This is because Arizona law provides any creditors four months to make a claim against your estate after a Notice to Creditors is published in the newspaper. Realistically, the Notice to Creditors is never published on the same day that the probate is open and therefore the estate must be open for longer than four months. If you have assets that are difficult to sell, the probate could be open for much longer than four months.

It is typically more expensive and more time-consuming for your survivors to probate your estate than administer a Revocable Living Trust Agreement. Probate is more expensive because probate requires more attorney time, more fees to be paid to the court and newspaper publisher, and because Arizona law requires a Personal Representative to take particular steps as part of the probate of your estate.

It is not always necessary to probate a decedent’s estate even if you don’t have a Revocable Living Trust Agreement. A number of other arrangements also avoid probate. Examples of these arrangements are properly-made life insurance or 401K beneficiary designations, properly established payable on death accounts or beneficiary deeds. We can advise you whether any of these options make sense for you.

If you are going to be serving as Personal Representative for someone’s estate, we can help guide you through the process. We will assist you by preparing the documents that will grant you legal authority as Personal Representative, assist you with the proper notifications that must be made, with the final distribution of assets and related documentation, and with all of the other steps that Arizona law requires you to take.

Trust Administration

Although it is generally easier to administer a Revocable Living Trust as successor Trustee than it is to serve as Personal Representative of a probate estate, you still hold a high fiduciary duty to the trust beneficiaries. You may wish to have legal advice to help you with the final administration of the trust. For example, the new Arizona Trust Code that went into effect on January 1, 2009, requires that you provide notice to the trust beneficiaries when you become trustee of someone’s trust. We can help you by advising you of all of the steps that you are legally required to take as a Trustee and assisting you in fulfilling your fiduciary duties.

Adult Guardianships and Conservatorships

If an adult person is incapacitated and did not make other arrangements for their personal care and for the care of their assets, it may be necessary to appoint a Guardian or Conservator for them. In general, a Guardian makes decisions about the care of an individual such as housing or medical decisions and a Conservator makes decisions about managing the individual’s assets or finances.

If someone you love becomes incapacitated, it may be necessary to go to court and request that you be appointed as Guardian, Conservator or both. We can help you with all of the necessary filings and notices that need to be made to start the process of your appointment. We can also help you with the annual filings that are required to be made after you have been appointed as Guardian or Conservator.

Business Formation

If you are starting a new business, you have important decisions to make regarding limitation of your liability and the selection of the best entity for tax purposes. We can help you determine the best entity for your purposes and assist you with the formation of a valid legal entity that will help protect you from personal liability. We assist clients with the formation of corporations, limited liability companies, and other valid entities under Arizona law.

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