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Articles by Robert Fleming
The NEXT Fifty Years of Elder Law
Two weeks ago I wrote a very self-indulgent newsletter about my upcoming fiftieth anniversary of the practice of law. Bear with me as I remain self-indulgent for another Issue. I want to predict what the next fifty years of law practice — and elder law particularly — will look like. It would be completely anodyne to observe that technology will continue to rapidly change our lives, and our expectations.
Fifty Years of Elder Law
It’s October. And that means that all things progress — to fall, to the end of the year, to the change of seasons, to Halloween. Also, it means that I have a personal milestone arriving around the bend. October 23, 1976. That was the day I stood up in a crowded convention hall and swore to adhere to the codes of conduct governing lawyers. Not to put too fine a point on it: that’s the day I became a lawyer. A lot has happened in those five decades.
Pay Attention to What You Ask For
“Be careful what you ask for.” Your mother probably said that (or “be careful what you wish for”) dozens of times. Your high school, college and work friends say it all the time. A recent Arizona Court of Appeals case caught our eye because of what the parties had asked for. We might say that the lesson of this case is a variant: pay attention to what you asked for. Michele Braun did her estate planning decades before her death. She signed a living trust in 1993 and died late in 2023 — at age 101.
AI In the Courts: Elder Law Edition
A lot has been written about the dangers and problems of Artificial Intelligence (AI) in the courts. First it was lawyers who let AI write their appellate briefs, without noticing the AI’s hallucinations. Some lawyers even had bar inquiries arising from their failure to double-check their AI. And lawyers blaming their staff for failure to double-check didn’t improve their success rate with angry judges, either.
Simple Will? Maybe That Is All You Need
“I just need a simple will.” That’s one of the most common things we hear from prospective clients. Sometimes they even apologize for taking up our time. They don’t have a business. Their estate is not taxable. They don’t own multiple homes. They just want a simple will. Sometimes they’re exactly right. When someone tells us they want a simple will, we almost never begin talking about wills. Instead, we ask some questions. Tell us about your family. Do you have children? Grandchildren?
The History of Guardianship (and Conservatorship)
News coverage of guardianship and conservatorship matters abound. But how did these systems come to be? That is, what is the history of guardianship? Early Roman law adopted processes that existed even before the modern era. In 449 BC, for instance, the Twelve Tables of Roman law provided for establishment of a curatelle and appointment of a curator for incapacitated adults.
Will Inheritance Affect My Public Benefits?
We get a version of this question every week or two. I’m about to inherit something from a family member’s estate. How will it affect my public benefits? The answer is often confusing, and for good reason. The first difficulty is determining what kinds of public benefits you receive. In general, some public benefits programs are based on your assets and/or income, but others are not.
Sub-Trust or Standalone Trust? Let’s Discuss
You’re planning your estate and will create a trust for a child or other family member. Do you start with a standalone trust for that individual, or simply embed the trust provisions in the rest of your estate plan? Let us try to demystify your choice. First some definitions for the terms we’re using here. By “standalone trust” we mean a separate trust document for the benefit of an individual.
Simultaneous Death Rules in Arizona
The common painkiller acetaminophen has been in the news lately, and perhaps unfairly so. But it’s far from the first time that Tylenol (the most commonly used brand name for the drug) has been in the news. A previous round of dramatic Tylenol news changed the way we get over-the-counter medications in the U.S. It also changed the probate law in Arizona and many other states. How did Tylenol affect probates? By changing the “simultaneous death” rules in many jurisdictions.
The Uniform Partition of Heirs Property Act
A year ago Arizona adopted the Uniform Partition of Heirs Property Act. At Fleming & Curt, PLC, we explained the new law and what it might mean in a podcast episode on May 11, 2025. As we explained in May, the problem has not been widely experienced in Arizona. At least not yet. But other states have seen lots of problems and abuses. This month we saw a New York appellate decision that laid out the concerns pretty neatly.
The Conversation: It’s That Time of Year Again
Every fall, in time for your Thanksgiving plans, we remind you that it’s time for The Conversation. No, not that conversation — we assume that the fact that you have grandchildren means you’ve already navigated that one. We’re talking about the end-of-life conversation. Because your far-flung family is likely to be in town for some of the upcoming holidays. It gets dark earlier (not that the conversation needs to be dark).
Bankruptcy Court Decision May Surprise Estate Planners
Last week we read a Bankruptcy Court appellate decision that surprised us. We think it might surprise other estate planning attorneys (and other advisors). It points out that the analysis applied in Bankruptcy Court might not reflect the same thinking that we apply. That court system views wills, trusts and estate planning differently. We also need to start with two other observations: The opinion from the Bankruptcy Appellate Panel is not a reported decision.
We want to take a few minutes to debunk some common myths about special needs trusts. We tackled a similar project last year, debunking myths about wills and trusts. But these trusts are special. And there are plenty of special myths about special needs trusts. Before we begin, though, we have to remind our readers: there are two very different types of special needs trusts. Actually, there are more than two. But for our purposes, we can identify all special needs trusts as one of two types.
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