Berk Law Group Blog

Latest from Berk Law Group Blog

I’m not a professional or even amateur headline writer, but if I were, mine would read as:
“Petty Estate ‘Won’t Back Down’: Demands Kari Lake’s Campaign Immediately Cease & Desist in Wake of Arizona Governorship Loss”
Just a few years ago, the Petty Estate was embroiled in litigation over who would be appointed to lead the administration of the Estate, i.e., the personal representative. Among many other things, and dependent on the circumstances, a personal representative is someone with the authority – and perhaps an obligation – to issue cease and desist letters on behalf of an estate. You can
Continue Reading Tom Petty: Still Headlining

On January 13, 2022, the Court of Appeals provided an excellent illustration of intestate succession when it decided In the Estate of Dougherty. In doing so, the Court also clarified when an adopted person may inherit through their birth parents. While this decision does not provide some new, earth-shattering precedent, it does hammer down Arizona’s intestate succession procedure when the decedent’s descendants are the only surviving heirs.
When someone dies without a will, or other estate plan, that person has died “intestate.” Intestate succession is the statutory process for distributing an intestate decedent’s estate. Arizona has a comprehensive intestate succession
Continue Reading Adopted, But Not Disinherited – An Example of Arizona Intestacy

Days of Session: 171
Bills Posted: 1774
Bills Passed: 473
Bills Vetoed: 27
Bills Signed: 412
Resolutions Posted: 125
Resolutions Passed: 13
Session End: July 1, 2021
Non-Emergency Bills Effective (90 days after adjournment): September 29, 2021
Probate/Estate Related Laws
The 55th Arizona legislative session was capped with the passage of $1.9 billion in annual tax cuts.  The result, a flat tax of 2.5% for almost all Arizona taxpayers.  With the Proposition 208 tax on high income earners, Arizona’s maximum state income tax rate will now be 4.5%, instead of 8%.  The 55th session included the passage of
Continue Reading Arizona 55th Legislative Session Summary

The “statute of limitation” is the deadline by which a person must file a lawsuit.  Unless some exception applies, if a person fails to file a complaint or petition within the applicable deadline, the claim will be barred, unless some exception applies.
So, what are the relevant deadlines?  When do the deadlines start running?  We will answer those and other questions below.
Arizona’s Typical Statutes of Limitation
Arizona’s statutes of limitation vary widely depending on the type of claim being asserted.  For example, claims based on the violation of a statute generally have to be filed within one year.  On
Continue Reading Court of Appeals Addresses Statute of Limitation for Financial Exploitation Claim

Berk Law Group is pleased to introduce its newest associate attorney, Ryan Murphy.   For undergraduate school, Ryan attended Oklahoma State University where he graduated cum laude, earned a bachelor’s degree in economics, and a bachelor’s degree in political science in three years. Ryan then attended the Sandra Day O’Connor of Law at Arizona State University. He graduated from ASU law school and received his Arizona license to practice law in 2021.

Ryan looks forward to serving clients with his compassion, positive attitude, and diligent work ethic. Like the rest of the firm, his practice will focus on Arizona probate,
Continue Reading Attorney Ryan Murphy Joins Berk Law Group

Berk Law Group, P.C., a preeminent probate law firm in Scottsdale, Arizona, is pleased to announce that Sarah E. Epperson has joined the firm as an associate attorney.  Sarah’s practice is focused on probate, trust and estate litigation and other contested estate matters, and administration..  She also has broad experience in the areas of civil and commercial litigation and civil appeals.
Epperson is an Arizona native who earned her B.A. in Political Science from the University of Arizona, summa cum laude, and her J.D. from the University of Arizona, James E. Rogers College of Law in 2013. She is a member
Continue Reading Attorney Sarah E. Epperson Joins Berk Law Group

On August 10, 2021, the Court of Appeals issued its decision in the case of In Re Norvelle.  Unfortunately, that case gives us very little guidance on the issue of what constitutes “actual discovery of the cause of action.”  Read our statutes of limitation article for an introduction to statutes of limitation in financial exploitation, abuse and neglect cases.
In Norvelle, Sisters sued their Brother for allegedly financially exploiting their Father.  Father had suffered a stroke in 2012.  Due to Father’s impairments, Brother moved in with Father to assist him until Father died in 2016.  The parties seem to
Continue Reading Court of Appeals gives little guidance in Adult Protective Services Act Statute of Limitation Case

Scottsdale, Arizona probate and elder law attorney Kent S. Berk will present a seminar at the 2021 Arizona Fiduciaries Association Fall Workshop.  Kent will co-present Scams & Exploitation of Elderly/Vulnerable Persons with Courtney Bennett from the Arizona Attorney’s General Office.
Topics will include:

  • Purposes & Construction of the Adult Protective Services Act
  • Who is Protected?
  • Who is subject to the Act?
  • Standard of Care and Exceptions
  • Remedies
  • Reporting Obligations
  • Other issues, e.g. standing and statute of limitations

AFA Fall Workshop Information
When: October 22, 2021
8:00 AM – 4:00 PM
Location: The High Country Conference Center Flagstaff, 201 W Butler Ave
Continue Reading Kent Berk to Present at Arizona Fiduciary Association Fall Workshop

Arizona’s Adult Protective Services Act, “APSA” for short, was adopted to expand the rights and claims to remedy abuse, neglect and financial exploitation of Arizona’s large population of vulnerable adults. Arizona courts are required to construe the statute broadly to protect vulnerable adults.  You can find a comprehensive discussion of financial exploitation claims here on our website.
In summary, there are four basic requirements to establish a claim for financial exploitation in Arizona pursuant to A.R.S. § 46-456(A):

  • A person who is in a position of trust and confidence;
  • To a vulnerable or incapacitated adult;
  • Uses the vulnerable adult’s

  • Continue Reading Free to Leave: Interested Persons Pursuit of Financial Exploitation Claims

    Arizona has a large population of vulnerable adults.  Arizona adopted the Adult Protective Services Act (“APSA”) in 1980.  The Arizona legislature has amended and supplemented APSA several times since.
    The goal of APSA is to protect Arizona’s large population of vulnerable adults from abuse, neglect and financial exploitation.  In order to further the objective of protecting vulnerable adults, in 2006, Arizona added A.R.S. § 46-459, which provides for the Adult Protective Services Registry.
    Pursuant to the law, the Arizona Department of Economic Security (the “Department” or “ADES”) is required to “maintain a registry of substantiated reports of abuse, neglect and
    Continue Reading Arizona’s Adult Protective Services Act Registry

    Hearsay Rule Defined
    Under Arizona Rules of Evidence 801 and 802, hearsay is inadmissible unless an exception applies.  Rule 801(c) defines hearsay as

    a statement that:

    (1) the declarant does not make while testifying at the current trial or hearing and

    (2) a party offers in evidence to prove the truth of the matter asserted in the statement.

    (Emphasis added.)

    Although relatively clear, to further define the rule, a “statement” is a “person’s oral assertion, written assertion, or nonverbal conduct, if the person intended it as an assertion.” Ariz. R. Evid. 801(a).  A “declarant” is “the person who made the
    Continue Reading Computer-generated statements and the hearsay rules

    The United States is growing old!  The National Academy of Sciences Engineering Medicine reports that the number of U.S. citizens ages 65 and older is going to nearly double from 2017 to 2060.  Twenty percent of our country will be over age 60 by 2030, and, for the first time in history, by the year 2034 there will be more people over age 65 than under the age of 18.  We are also seeing this trend in Arizona.  The U.S. Census Bureau estimates that more than a quarter of Arizona’s population will be over age 60 by the year 2030.
    Continue Reading Federal Government Enhancing Criminal Prosecution of Nursing Home Abuse

    The past several weeks have tested us all.  While the near future remains uncertain, we will surely prevail over our current crisis.  We wish you all the best of health, safety, strength and peace during these trying and unprecedented times!As we continue to monitor and adjust to ongoing developments caused by the Coronavirus (COVID-19), nothing will compromise our commitment to keep our employees and clients safe, while still taking care of the matters that our clients trust our firm to handle.
    We have plans in place to continue to provide exceptional, uninterrupted service to our existing and potential clients. To
    Continue Reading Berk Law Group is Open and Accepting New Matters – Safely

    As we continue to monitor and adjust to ongoing developments caused by the Coronavirus (COVID-19), we have compiled a list of and links to Administrative Orders, Executive Orders and other resources helpful to attorneys practicing in Maricopa County, Arizona.   We will monitor new developments and try to keep the list updated.  Please let us know if you are aware of something that we should include.
    Arizona Governor Ducey’s Executive Orders

    Continue Reading COVID-19 Resources for Maricopa County, Arizona Attorneys