Who Is Responsible For Your Bank Account After Your Death? Estate Planning Strategies For Accessing Funds After Death If you have an account at a bank or credit union, it’s crucial to have a plan in place so your family can access the funds in case you die unexpectedly. This is especially important if you’re the primary income earner for your family. If you don’t have a plan for the distribution of your estate and management of your assets following your death, your family could face unnecessary financial strain waiting for probate court in the 6-12 months after your death. Consulting with an experienced Arizona estate planning lawyer can help you determine the best options and strategies for protecting your family and managing your assets. There are multiple estate planning strategies that can be used so your family will have easy access to the funds you have worked so hard to earn. Payable On Death Accounts A Payable on Death (POD) account is easy to set up at your bank. You’ll name an Arizona bank account beneficiary by completing some paperwork. You can set up a POD for multiple types of accounts, including checking, savings, C Ds, and investment. Naming a bank account beneficiary enables your loved ones to transfer available funds from stocks and bonds without waiting for probate court. Setting up a POD account offers many advantages, especially if you are your family’s primary source of income or work a high-risk job. Your beneficiaries will have immediate access to your bank accounts and investments after your death while avoiding the hassle and delays of probate court. The Arizona bank account beneficiary whom you name will be able to access your accounts immediately upon your death, giving your heirs and survivors necessary cash flow while waiting for your will to be settled. When you add a beneficiary to your account, you maintain control over your bank accounts; the beneficiary has no access or claim to any of the funds while you  Stocks and bonds: Arizona allows account holders to register their stocks and bonds on a TOD. If you register your accounts in this way, your beneficiary will automatically inherit the account after your death. The beneficiary will work directly with the brokerage company to transfer the account, meaning that no probate court proceedings will be needed. Vehicle registrations: In Arizona, you can register your vehicle with a TOD so that your beneficiary can immediately inherit the vehicle after your death without going through probate court proceedings. Real estate: Real estate can also be designated to a beneficiary with a TOD deed, also called a beneficiary deed. The deed will be signed and recorded, and can be revoked at any time, including if you choose to sell the property. The beneficiary has no rights over the property until after your death. are alive. You can withdraw and deposit money and close the account any time, just like any other bank account. Your beneficiary will only gain access to your POD accounts after your passing. Before the funds can be released, the beneficiary will generally need to complete a claims form, provide identification, and submit a copy of your death certificate. Transferable On Death Accounts A transferable on death (TOD) form allows you to transfer assets to named beneficiaries whom you choose. The process of setting up a TOD is similar to setting up a POD. Your Arizona estate planning attorney can help you contact the entities who hold your assets and complete the necessary paperwork to name the beneficiary. A TOD can be set up with a variety of accounts:Arizona Estate Planning Working with an experienced Arizona estate planning attorney is the best way to effectively and legally draft estate planning documents that work for your financial situation and protect all of your assets. It’s important to realize that PO Ds and TO Ds are only one tool in your estate planning toolbox and may not be the best option for everyone. Alternatively, they may be a good idea now but become complicated later. For example: If you name your spouse a beneficiary and then divorce later, the POD may be canceled. If your beneficiary has died, their heirs can inherit, but they will need to go through probate court. If there is a challenge or disagreement over your estate, the POD can be challenged in court. If there is an oversight and a POD contradicts your will, probate court may be necessary. The best way to avoid these mishaps is to work with an attorney to carefully draft a comprehensive estate plan that considers all of your assets and uses a variety of estate planning measures, such as wills, trusts, and more. Contact Arizona’s Leading Estate Planning Attorneys The experienced attorneys at My AZ Lawyers are ready to work with you on all of your estate planning needs and help you determine the best way to manage your assets after your death. We will carefully examine your situation, discuss your goals, and devise the best strategy to meet your wishes. Contact My AZ Lawyers today to schedule your complimentary consultation and gain peace of mind knowing that your family and assets are protected!   Arizona Offices: Mesa Location: 1731 West Baseline Rd., Suite #100 Mesa, AZ 85202 Office: (480) 448-9800 Email: info@myazlawyers.com Website: https://myazlawyers.com/ Phoenix Location: 343 West Roosevelt, Suite #100 Phoenix, AZ 85003 Office: (602) 609-7000 Glendale Location: 20325 N 51st Avenue Suite #134, Building 5 Glendale, AZ 85308 Office: (602) 509-0955 Tucson Location: 2 East Congress St., Suite #900-6A Tucson, AZ 85701 Office: (520) 441-1450 Avondale Location: 12725 W. Indian School Rd., Ste E, #101 Avondale, AZ 85392 Office: (623) 469-6603 The post Who Is Responsible For Your Bank Account After Your Death? appeared first on My AZ Lawyers.

 If You Defaulted on Student Loans, The Fresh Start Program Offers a Second Chance. See the article at Forbes https://www.forbes.com/advisor/student-loans/fresh-start/Jim Shenwick, Esq. jshenwick@gmail.com 212 541 6224

 What type of student loans qualify for up to $20,000 of forgiveness under the Biden Plan? These student loan types qualify for up to $20,000 of forgiveness under Biden's planhttps://www.businessinsider.com/personal-finance/which-loans-qualify-student-loan-forgiveness-2022-9Jim Shenwick, Esqjshenwick@gmail.com212 541 6224

The Fifth Circuit is largely resistant to third party release provisions. The Circuit will enforce a clearly defined third-party release that is not objected to, Republic Supply Co. v. Shoaf, 815 F.2d 1046 (5th Cir. 1987), but will not sustain such a provision if a timely objection is filed, Ad Hoc Group of Vitro Noteholders v. Vitro SAB De CV (In re Vitro SAB De CV), 701 F.3d 1031 (5th Cir. 2012). It is also resistant to bar orders, Feld v. Zale Corp., (In re Zale Corp). 62 F.3d 746 (5th Cir. 1995) and most exculpation clauses, Bank of New York Trust Co., NA v. Official Unsecured Creditors' Comm. (In re Pacific Lumber Co.), 584 F.3d 229 (5th Cir. 2009).   (If you need more background on these different types of third-party releases, I would be happy to provide you with my paper from the last Western District Bench-Bar Conference which discusses these issues at length).  The Court recently rebuffed an attempt to distinguish its jurisprudence on exculpation clauses but offered other limited relief.  The case is Nexpoint Advisors, L.P. v. Highland Capital Mgmt., L.P. (In re Highland CapitalMgmt., L.P.), 2022 U.S. App. LEXIS 25107 (5th Cir. 9/7/22). What HappenedThis is the story of a billion-dollar investment fund and its break-up with one of its founders. Highland Capital Management, LP was a Dallas-based investment fund co-founded by James Dondero. In 2019, Highland filed bankruptcy in the U.S. Bankruptcy Court for the District of Delaware. The case was transferred to the Northern District of Texas. The Fifth Circuit noted that the case “did not proceed under the governance of a traditional chapter 11 trustee.” Of course, having a chapter 11 trustee is the exception rather than the rule. What the court meant was that the parties fashioned a bespoke remedy for control of the Debtor.  Dondero stepped down as control person of the Debtor’s general partner and was replaced by three independent directors approved by the court, including a former bankruptcy judge. The Court barred any claims against the independent directors without prior court approval. The Court subsequently appointed a Chief Restructuring Officer. Thus, the parties obtained a de facto trustee of their own choosing. Dondero proposed several plans which were not confirmed. The Committee and the Independent Directors negotiated their own plan. When Dondero couldn’t get his plans confirmed, “he and other creditors began to frustrate the proceedings by objecting to settlements, appealing orders, seeking writs of mandamus, interfering with Highland Capital's management, threatening employees, and canceling trades between Highland Capital and its clients.” Eventually the Bankruptcy Court held him in civil contempt and fined him $100,000.  Dondero and the U.S. Trustee objected to the plan’s exculpation provisions. The Bankruptcy Court confirmed the Plan and appeals followed. The Fifth Circuit generally affirmed the plan but pared back the exculpation clauses.ExculpationExculpation clauses are a subspecies of third-party releases. They preclude any party from suing various parties associated with the plan except for gross negligence or willful misconduct. Their practical effect is to bar claims for ordinary negligence in connection with the plan process. Exculpation clauses have both a proper use and an improper one. The improper use is to shield professionals from their own negligence. The proper use is to encourage parties to work together to confirm consensual plans safe in the knowledge that they won’t get sued if things don’t work out. A third reason to include an exculpation clause is that it’s part of an attorneys’ boilerplate and no particular thought went into including the clause.The plan in this case had two provisions which protected the plan participants:  the exculpation clause and the gatekeeper clause. The parties protected included the Debtor, its employees, the Chief Restructuring Officer, the independent directors, the Unsecured Creditors’ Committee, the professionals and the "Related Parties.”  According to the Fifth Circuit:The Plan exculpates the protected parties from claims based on any conduct "in connection with or arising out of" (1) the filing and administration of the case, (2) the negotiation and solicitation of votes preceding the Plan, (3) the consummation, implementation, and funding of the Plan, (4) the offer, issuance, and distribution of securities under the Plan before or after the filing of the bankruptcy, and (5) any related negotiations, transactions, and documentation. But it excludes "acts or omissions that constitute bad faith, fraud, gross negligence, criminal misconduct, or willful misconduct" and actions by Strand and its employees predating the appointment of the Independent Directors.The Fifth Circuit also explained the gatekeeper clause as follows:Under the Plan, bankruptcy participants are enjoined "from taking any actions to interfere with the implementation or consummation of the Plan" or filing any claim related to the Plan or proceeding. Should a party seek to bring a claim against any of the protected parties, it must go to the bankruptcy court to "first determin[e], after notice and a hearing, that such claim or cause of action represents a colorable claim of any kind." Only then may the bankruptcy court "specifically authoriz[e]" the party to bring the claim. The Plan reserves for the bankruptcy court the "sole and exclusive jurisdiction to determine whether a claim or cause of action is colorable" and then toadjudicate the claim if the court has jurisdiction over the merits.The Court’s RulingThe Court upheld the exculpation clause as to the Debtor, the Unsecured Creditors’ Committee and the independent directors. Under Pacific Lumber, a release may only be approved if provided elsewhere in the Code. The Debtor receives a release because it is discharged under the Plan. The Court in Pacific Lumber found that the Code provisions relating to members of the Unsecured Creditors’ Committee allowed their exculpation. The Court found that the independent directors were entitled to exculpation because they were acting in the role of a trustee. The Court stated that:That leaves one remaining question: whether the bankruptcy court can exculpate the Independent Directors under Pacific Lumber. We answer in the affirmative. As the bankruptcy court's governance order clarified, nontraditional as it may be, the Independent Directors were appointed to act together as the bankruptcy trustee for Highland Capital. Like a debtor-in-possession, the Independent Directors are entitled to all the rights and powers of a trustee. It follows that the Independent Directors are entitled to the limited qualified immunity for any actions short of gross negligence. Under this unique governance structure, the bankruptcy court legally exculpated the Independent Directors. (cleaned up).Nevertheless, the Court found that outside of these three groups, exculpation was improper and had to be reversed. This applied primarily to the bankruptcy professionals, the CRO, the Debtor’s employees and the “Related Parties.”However, the Court did not leave then un-exculpated parties without any protection. It upheld the gatekeeper provisions. The Court analogized the gatekeeper provisions to the Barton Doctrine which protects Trustees from being sued without prior court permission. The Court stated:Courts have long recognized bankruptcy courts can perform a gatekeeping function. Under the "Barton doctrine," the bankruptcy court may require a party to "obtain leave of the bankruptcy court before initiating an action in district court when the action is against the trustee or other bankruptcy-court-appointed officer, for acts done in the actor's official capacity." In Villegas, we held "that a party must continue to file with the relevant bankruptcy court for permission to proceed with a claim against the trustee." Relevant here, we left to the bankruptcy court, faced with pre-approval of a claim, to determine whether it had subject matter jurisdiction over that claim in the first instance. In other words, we need not evaluate whether the bankruptcy court would have jurisdiction under every conceivable claim falling under the widest interpretation of the gatekeeper provision. We leave that to the bankruptcy court in the first instance. (cleaned up).What Does It Mean?The Fifth Circuit remains resistant to broad exercises of power untethered to the Code.  However, it is willing to consider pragmatic expansions of existing precedent. Here, the problem was that one party had proven himself to be unduly litigious. This meant that the plan proponents and related parties had a legitimate concern that they might be sued over the plan in a forum unfamiliar with the bankruptcy case. While the Barton Doctrine is an equitable doctrine specifically intended to protect trustees from being sued without permission, the Fifth Circuit was willing to endorse its extension to a broad class of plan-related parties. This partial measure protects the parties from frivolous suits without granting blanket releases.This suggests that the Fifth Circuit would also consider other partial measures that stop short of outright releases. In particular, it seems likely that the Fifth Circuit would allow temporary injunctions against collection of debts from insiders during the period of plan performance as was done by Judge Barbara Houser in In re Seatco, 257 B.R. 469 (Bankr. N.D. Tex. 2001). The message to plan drafters in the Fifth Circuit is that if you can’t get consensus, be modest, be practical, and find a hook in the Code or existing precedent.

 According to the NY Post New York has fourth-highest household debt in US — and it’s getting worse. https://nypost.com/2022/09/23/new-york-has-fourth-highest-household-debt-in-us-and-its-rising/?utm_source=gmail&utm_campaign=android_nypAs debt increases, expect personal bankruptcy filings and business closings to increase. Jim Shenwick, Esq. jshenwick@gmail.com 212 541 6224

Not every expenditure that benefits the debtor’s household or his family is a household expense. And, if it’s not a household expense, it doesn’t get added to CMI in a single spouse bankruptcy filing. That’s how the marital adjustment should work. But it’s not so simple. Household expense is not an expansive definition During a NACBA […] The post Marital Adjustment: Everything But The Kitchen Sink appeared first on Bankruptcy Mastery.

 Bankrate has a very helpful article about how to keep your car after you file for bankruptcy. The article titled "Keeping your car in bankruptcy" can be found at https://www.bankrate.com/personal-finance/debt/keeping-your-car-in-bankruptcy/At Shenwick & Associates we have filed many personal bankruptcy petitions for clients who have kept their cars and gotten a discharge!Jim Shenwick, Esq jshenwick@gmail.com 212 541 6224

Perhaps more so than any other situation, in a melting ice cube case, the best outcome for each is a consensual outcome for all.  Let me explain.  Most legal disputes are over the distribution of value.  The value may be inventory, mineral interests, money, equity, contract performance, cessation of activities, or something else.  In melting ice cube cases, the value at the center of the dispute is diminishing over time.  Sometimes rapidly.  So, every tick of the clock represents a further decrease in value. Melting ice cube cases are common in chapter 11 bankruptcy disputes, but they can arise in all forums and in many shapes and sizes.  Regardless of the context, all melting ice cube cases have two things in common:  (1) melting or diminishing value, and (2) the disputing parties will ultimately sink or swim together. Melting ice cube cases are perfect candidates for mediation.  Time is of the essence to maximize the value to be shared.  Everyone understands the urgency.  And everyone shares the risk of further degradation in value.  That does not make melting ice cube cases easy to resolve, but it does mean they are well positioned for all parties to be motivated to find a path to resolution. A good illustration of the dynamics of a melting ice cube case is Rachel Bright and Jim Field’s The Squirrels Who Squabbled.  This children’s book shows the pitfalls of fighting over the melting ice cube and the benefits of working together.  In this story, the ice cube is a pinecone. The two main characters are squirrels named Spontaneous Cyril and Plan-Ahead Bruce.  Winter is coming.  Cyril has stored little for winter; Bruce has already stored a lot but is concerned he needs more.  Each spots the very last pinecone of the season.  It is wedged in the nook of a branch of a tree. Cyril and Bruce race to seize the pinecone.  As they run across the tree branch, the branch shakes and the pinecone falls.  It bounces through the forest coming to a stop at the edge of a cliff.  They sprint to grab it.  As they each reach for the last pinecone, it falls over the cliff tumbling into the water below.  They follow it and dive into the rapids.  Each is so intent on winning the pinecone that they are oblivious to the waterfall ahead.  And to the bird that swoops in and flies away with the pinecone.  Now, they have no pinecone and are both in danger of drowning. After the plunge to the bottom of the waterfall, Cyril grabs a branch with one hand and grabs Bruce with the other.  Cyril pulls them to safety.  Grateful to be alive, they become friends and agree to share. Lesson learned?  Had Bruce and Cyril worked together from the start, then they could have ended up with their friendship, health, and the pinecone.  They could have divided that pinecone in a myriad of ways.  Instead, they have no pinecone and barely survived. The same is true in a melting ice cube case.  Either the parties find a way to share, or everyone risks losing it all. Author’s Note: As a mediator, I am a “forever student” always seeking new ways to help people find a path to resolution in mediation.  As a parent, I have spent a gazillion hours reading books to my children.  Oftentimes, these books teach me new ways to approach conflict resolution.  In this case, Rachel Bright and Jim Field’s “The Squirrels Who Squabbled” inspired this post. Disclaimer:  Nothing contained herein constitutes legal advice nor does anything contained herein create a professional relationship. Mediator Insights - How to Spot a Melting Ice Cube Case The post Mediator Insights: How to Spot a Melting Ice Cube Case appeared first on Sylvia Mayer Law.

Bullies use aggressive behavior (physical and verbal) to intimidate and coerce others.  Bullies show up in all aspects of life, including in mediation and negotiation.  In many cases, the bully is the reason the dispute is in mediation.  The bully has become the barrier to resolution.  It is then the mediator’s job to breach the bully barrier to facilitate a path to resolution. To illustrate, let’s consider Alexis O’Neill’s children’s book The Recess Queen.  In this book, no one swings until Mean Jean swings.  No one kicks a ball until Mean Jean does so.  No one bounces on the trampoline until Mean Jean bounces.  Mean Jean uses physical (pushing and kicking) and verbal (growling and yelling) intimidation to control the other kids.  Mean Jean is the Recess Queen.  Mean Jean is a bully. But then a new kid comes to school.  Her name is Katie Sue.  Recess comes.  Katie Sue exuberantly rushes outside where she swings, then kicks a ball, then bounces.  All before Mean Jean does any of it.  Mean Jean charges after her.  Mean Jean grabs her by the collar.  Mean Jean yells at Katie Sue. But Katie Sue surprises Mean Jean.  She is not intimidated.  Instead, Katie Sue breaches the bully barrier.  She pulls a jump rope out of her backpack.  Katie Sue starts to jump and invites Mean Jean to jump with her.  After an awkward pause, Mean Jean joins in.  They jump.  They giggle.  They become friends.  And the playground becomes a place to play for everyone. How does this translate to the bully in mediation?  Katie Sue did four important things. First, Katie Sue did not fight fire with fire.  A bully’s power lies in their ability to trigger other’s emotions.  Katie Sue took that power away.  She did not let Mean Jean’s bullying affect her emotional state. Second, Katie Sue separated the person from the problem.  Instead of reacting to the person, Mean Jean, Katie Sue focused on the shared problem.  Everyone, including Mean Jean, wanted to play during recess. Third, Katie Sue met an unspoken need.  Bullies often act out because they are hiding something.  When Katie Sue invited Mean Jean to jump with her, we learned that, until that day, no one had ever asked Mean Jean to play. Fourth, Katie Sue found a solution that met everyone’s needs and allowed Mean Jean to be central to the resolution.  Some people refer to this as saving face. What does The Recess Queen teach parties and mediators about how to breach the bully barrier in a mediation?  Stop.  Breathe.  Do not react.  Listen, observe, and learn.  Separate the person from the problem.  Seek out the unspoken needs.  Find a path to resolution that meets everyone’s needs and allows them to be part of the solution, instead of the problem. Author’s Note: As a mediator, I am a “forever student” always seeking new ways to help people find a path to resolution in mediation.  As a parent, I have spent a gazillion hours reading books to my children.  Oftentimes, these books teach me new ways to approach conflict resolution.  In this case, Alexis O’Neill’s “The Recess Queen” inspired this post. Disclaimer:  Nothing contained herein constitutes legal advice nor does anything contained herein create a professional relationship. Mediator Insights - Breaching the Bully Barrier in Mediation The post Mediator Insights: How to Breach the Bully Barrier in Mediation appeared first on Sylvia Mayer Law.

Every arbitration is unique – the parties, facts, law, complexities, procedures, schedule, and deadlines – it all varies with each case.  But here are a few real-world practice tips that do not change from case to case.  Keep these in mind as you prepare for your next preliminary case management hearing and scheduling conference. To quote Jerry Maguire, I offer these tips so you can “help me help you.” Preparation. I prepare before every preliminary hearing conference.  You should too.  Review the relevant pleadings, the administrative rules, and any guidance from the arbitrator(s). For many administered arbitrations, the administrative rules include a list of topics to be addressed at the preliminary hearing conference.  For example, for an American Arbitration Association (AAA) Commercial Arbitration, refer to Rule P-2, and for an International Institute for Conflict Prevention and Resolution (CPR) Administered Arbitration, refer to Rule 9.3. Time. You are busy.  I understand that.  I am busy too.  You should also understand that.  If there is information that you want me to review before the hearing, then please provide it far enough in advance that I have time to review it. Emergencies happen.  I understand that.  Deadlines happen too.  Keep an eye on the schedule and deadlines established for the arbitration.  If you do not already have a tickler system (i.e., reminders of upcoming deadlines), then you may want to adopt one. While we may all be busy professionals, we are people too.  When setting deadlines and schedules, I consider the parties’ input and the need for a fair, efficient, and economical resolution of the arbitration.  I also take holidays, vacations, and personal commitments into account.  Please do not propose a schedule intended to jam the other side. Dialog. Meet and confer.  As noted above, the topics to be discussed at the preliminary hearing conference are often set out in the administrative rules or a pre-hearing communication from the arbitrator(s).  Discuss these issues with opposing counsel in advance of the conference.  It will help to streamline the hearing. By the way, meet and confer is a recurring theme.  Most arbitrators, this one included, will encourage or order the parties to meet and confer about disputes throughout the proceeding before seeking arbitrator intervention.  Having an initial meet and confer before the preliminary hearing conference establishes a foundation for future dialog. Conclusion. Prepare for the preliminary hearing conference by using your time wisely.  Review the papers, rules, and any guidance from the arbitrator(s).  Confer with opposing counsel to explore the topics to be addressed during the conference to identify areas of agreement and narrow the procedural matters in dispute.  In summary, help me help you. Disclaimer:  Nothing contained herein constitutes legal advice nor does anything contained herein create a professional relationship.  In addition, nothing contained herein comments on a pending or prior arbitration nor constitutes an advisory opinion concerning a pending or future arbitration.  Each arbitration is unique, and decisions are made on a case-by-case basis. Arb Ins - Practice Tips from an Arbitrator The post Arbitrator Insights: Real World Practice Tips from an Arbitrator as You Prepare for Your Next Preliminary Case Management Hearing and Scheduling Conference appeared first on Sylvia Mayer Law.