What people want to know about a will.
What is a will?
A will is a written document that governs what happens to certain property when a person passes away. A will is the most basic estate planning instrument one can utilize. In Arizona wills are governed by statute. Arizona Revised Statute §14-2501 governs who can create a will. Generally, any person over the age of 18 who is of sound mind and body can create a will. Arizona Revised Statute §14-2502 sets forth the general requirements of a valid will. The basics require that a will must be in writing, signed, and witnessed by at least two other people. A will usually also appoints one or more people to serve as personal representative of the decedent’s estate. A personal representative is the individual who will be responsible for distributing the estate according to the terms of the will. A personal representative has certain powers and obligations to the estate and the beneficiaries. These duties are also governed by statute beginning with Arizona Revised Statute §14-3701.
Does a will affect all assets?
A will does not necessarily effect all the decedent’s assets. For instance, if a decedent wanted to transfer real property outside of a will, they could use what’s called a beneficiary deed. Similarly, financial accounts such as checking or savings accounts, IRA’s, Life Insurance Policies or other accounts can have a designated beneficiary or can be held jointly. Under these circumstances, these assets would not be governed by the will. A person may also choose to make certain gifts of their property prior to passing, these transfers are also not subject to terms of the will. In situations, such as these, the property in question is transferred out of the decedent’s name prior to them passing away, thus, the property is not treated as part of the decedent’s estate and is not governed by the will.
Do I have to have a will?
Although it is highly recommended, nothing in the Arizona Revised Statutes requires that a person have a will. When someone dies without a will, their estate is administered by a manner called Intestate Succession. Arizona Revised Statute §14-2101 governs intestate succession. If a decedent dies without a will, their property is distributed between certain family members as set forth in the statutes. If there are no surviving family members found, the decedent’s property will “escheat” back to the state. Although one may think this is fine for them, many issues occur under intestate succession and is one of the reasons why executing a will is always recommended.
Can a will be changed?
A will can be changed at any time as long as the person changing the will is still alive and still has the physical and mental ability to do so. When a will is changed it is done by adding what is called a “codicil.” However, if there are several changes, it can be better to simply draft a new will as opposed to adding more codicils.
Why do I need a will?
As discussed above, in the absence of a will, a decedent’s property will still pass via intestacy and this is often times not how you would choose if you had created a will. When someone wants to make specific provisions about what happens to their property, a will is a good mechanism to accomplish this. Especially today when so many families are blended families, an estate plan is imperative to protect your loved ones who are not blood relatives. In addition, a valid will can make probate easier on those left behind, as they will likely be able to proceed via informal probate, a process that is generally easier and less expensive. In order to avoid probate completely, a trust is a far superior instrument.
Estate planning is an important step in planning for your future and protecting the people you love. Whether you don’t currently have a will, or you would like us to take a look at your existing estate plan, Platt & Westby, P.C. has attorneys that are ready to assist you. Platt & Westby, P.C. has offices in Phoenix, Arrowhead, Litchfield Park, Scottsdale and Gilbert, Arizona. Call 602-277-4441 for a free consult with an experienced estate planning attorney.