A will is one of the most basic and best-known estate planning tools. Still, a surprising percentage of U.S. adults don’t have wills. And, many don’t realize how that oversight can hurt their surviving family members when they’re gone.
At Lincoln & Wenk, we know how important it is for your family to be protected. And, we understand that every family is different. Our mission is to find the best legal solutions for you and your family, not try to fit you into a template. We’ll take the time to listen to your concerns, learn about your assets and how you want to provide for your family, other loved ones, charities you want to support, and even your pets. Then, we’ll craft a document tailored to your needs and your goals.
What is a Will?
A will is a legal document that provides instructions for who should receive your property after your death. Your will also serves other functions, such as:
- Naming the person you want to serve as personal representative of your estate, and a substitute representative in case the first person named is unable or unwilling to serve
- Specifying which assets should be used to pay debts, taxes, and other expenses
- Providing instructions as to whether specific assets should be distributed to certain beneficiaries or the estate assets should be liquidated and the proceeds distributed according to the will
- Making bequests to charity
In Arizona, there are some technical requirements for executing a valid will. Some of those requirements relate to the person executing the will. These include:
- The testator must be at least 18 years of age when the will is executed
- The testator must be mentally competent when the will is executed
- The testator must execute the will of their own free will
Others relate to the form of the will. A valid Arizona will generally must:
- Be in writing
- Be signed by the testator
- Be signed by two witnesses who watched the testator sign the will, and who are not beneficiaries to the will or relatives of any beneficiary
There is one exception to the final requirement. About half of U.S.states, including Arizona, recognize holographic wills. If a will is written and signed in the testator’s own handwriting, it will be considered valid even if it is not witnessed as is usually required. However, this is usually not the best approach to executing a will, because the authenticity of the will can be disputed and there may be no witnesses to authenticate it. And, most people don’t know how to draft a will to ensure that it is clear, valid, and addresses all necessary issues.
Self-Proving Wills in Arizona
When a will is submitted to probate, it must be proven–that is, the person filing the will must demonstrate to the court that the will is authentic and valid. That’s why a valid will requires witnesses–if a conflict arises, those witnesses can be called to testify that they saw the testator sign the will and, if necessary, that they appeared to be mentally sound and acting freely and voluntarily when they did.
Obviously, this system isn’t ideal. Witnesses may pass away before the testator, move across the country, or just be unknown to the person who eventually ends up as personal representative to the estate. So, Arizona allows for “self proving” wills.
A self-proving will is a will accompanied by affidavits from the witnesses. With these affidavits, in proper form and properly executed, no witness is required to appear in court and establish the validity of the will. Most wills are self-proving now, as it is a more efficient, more reliable and often less expensive means of proving up a will.
Who Should Have a Will?
Generally, every Arizona adult should have a will. Younger people often believe they don’t need wills because they don’t own much property, and because they expect to have many years ahead. But, even with limited property, dying intestate can put a real strain on the family. For example:
- There may be conflict among family members about who should serve as personal representative
- The beneficiaries under the law of intestate succession may not be the people you would have chosen if you’d executed a will
- Intestate succession divides property in percentages, but leaves open the question of who should receive what specific property–a question that may be passionately disputed if the person is leaving behind mostly personal property that may have sentimental value
Unfortunately, most of us don’t know when the end is near, and putting off preparations can be a serious mistake. You can update or replace your will at any time, so there’s no downside to executing a will “too early.”
These same issues are magnified when there are more significant resources in play. Disputes among family members can dissipate an estate, draining off assets that should have gone to loved ones. The more questions you resolve during your lifetime, the less emotional and financial stress your beneficiaries are likely to face when you’re gone.
Do I Need a Will If I Have a Living Trust?
It’s a common mistake for people to believe that a living trust replaces a will in your estate plan. While most people will choose one or the other to be the primary means of collecting and distributing assets, they work hand-in-hand. Most people, no matter how careful they are about properly titling new property, end up with some assets that have not been transferred into the trust.
If that happens and there is no will, those assets will become part of an intestate estate, potentially passing to different people or in different proportions than the trust dictates. To avoid this, your Arizona estate planning attorney can draft a pour-over will–a simple will that directs that any assets you own personally at the time of your death be transferred to the trust.
Talk to an Experienced Wills and Estates Attorney
Having your will professionally drafted by someone with the experience to guide you through all of the issues, types of property, and potential complications is an investment in protecting your family. A well-drafted will can guide the entire probate process, from directing the payment of debts and expenses to which property should be transferred to beneficiaries as-is and which assets should be sold off and the proceeds divided among the beneficiaries according to the terms of the will.
An experienced will attorney can also help you choose a personal representative who has the right abilities and inclinations to administer your estate. The best choice isn’t always the person closest to you.
To learn more about how we can help, call 623-294-2464 right now, or fill out the contact form on this site.