A Will, also known as a Last Will and Testament, is a legal document controlling how property is distributed after a person passes away. It is one of the most fundamental legal documents in estate planning. In the state of Arizona, the basic requirements are as follows:
- The maker of the Will, called the testator, must be at least 18 years old
- He or she must be of sound mind at the time the Will is signed
- The Will must be executed according to specific rules and regulations
- After your death, the Will must be filed by the probate court in order for it to become effective
A Will can help you accomplish all of the following goals:
- Allow you, not the state, to determine who receives your probate assets after you pass away
- Name a person of your choosing as guardian for your minor children
- Name the person or institution you want to manage your estate after death
- Bequeath gifts to charity upon your death
- Determine who will have responsibility for paying estate and other taxes (if applicable)
If you die without a Will, your probate estate will be distributed according to formulas set forth in the Arizona statutes. The state, not you, controls who gets what. The state can also appoint the person to manage your estate, appoint someone to raise your minor children and make other decisions that might not reflect your wishes.
Living Wills in Gilbert AZ
Each state has its own guidelines regarding medical decisions in the event the patient is incapacitated or unable to communicate on his or her own behalf. Drafting a living will means that, if you require end-of-life care, your wishes are known.
What a Will Can and Cannot Do
A Last Will and Testament is a legal document which designates someone to take possession of everything you own when you die. There are different requirements for a valid will in different states but generally speaking the following are typically required:
- The Will must be in writing
- The signing of the Will must be witnessed by two people who also sign the Will as witnesses
- The person creating the Will must be competent to understand the provisions of the document
Designate a Personal Representative
A will usually designates a personal representative to carry out the provisions of the will. Some states require a personal representative and if there is no one named in the will, the court will appoint an appropriate person to serve in that capacity.
Direct Sale or Gift of Property
A will can leave property such as a house, a cabin or a farm to a specific person or to an organization. It can also require a personal representative to sell property and also direct how the proceeds from the sale will be distributed.
A Will Cannot Change Beneficiary Designations
A Will cannot give property which is otherwise controlled by beneficiary designation documents. For example, most pensions and retirement accounts require beneficiary designations and those accounts will pass according to the beneficiary designation. They will not be impacted by language in the Will. Life Insurance works the same way. The proceeds from life insurance policies are not gifted through a Will. They are typically provided for in the beneficiary documents required by the insurance company.
A Few Things You May Not Know about Wills
If you care about who gets your assets after you die, you know you need a will. However, there are many things about wills that a lot of people don’t know.
Here are four of them, says a story on DailyFinance.com:
1) You have to follow formalities, even in the digital age
Laws concerning wills are among the oldest on the books. They haven’t kept up with the times. You can’t do a will on your smartphone. You must sign in the presence of witnesses who may then need to testify in court after your death that the will was validly signed. In some cases, their signatures may be able to be notarized, eliminating the need to testify.
2) You may need a will even if you have few assets
Many young couples don’t have wills because they don’t have many assets. But a will covers things other than assets. It can name the person you’d like to care for your children if something happens to you, to name one. If you don’t name a guardian, a judge will do it.
3) If you don’t update your will, state laws will make decisions for you
If you get married and you don’t update your will, the law in many states will grant your spouse a share of your estate at your death, for example. If you don’t want that to happen, you have to update your will.
4) Your will can’t control who gets certain assets
Many exceptions exist. These include accounts that require beneficiaries such as life insurance policies and retirement accounts.
How Does a Last Will and Testament Effect Elder Law?
A will contains a set of written instructions that determine how your estate is to be divided after your death. Your loved ones cannot legally take control until after your property passing through the will is put through probate.
Where There Is a Will, There Is a Way
One of the most common myths about estate planning is “I have a will so my assets won’t go through probate.” Wrong! A probate is determined by the types of assets a decedent has and how they are titled, regardless of whether the decedent has a will.
Last Will and Testament
If you have a will, it does not mean you will avoid the probate process. A will merely provides instructions to the probate court about your wishes. Any individual assets that are not titled in the name of a trust, or do not have a beneficiary form stating who the asset will go to at your death, is a probate asset. When assets go through the probate process either formally or informally, the court looks to the decedent’s will to determine who the decedent chose as beneficiaries. If the person who died did not create a will, the court must rely on state statutes to determine who will receive the decedent’s assets. Sadly, only about 25% of Americans create a will. This means about 75% of individuals leave asset distribution decisions up to their state legislators.
In a will you name:
- Who you want to raise your minor children should something happen to you and the other biological parent
- Who you want to receive any of your financial assets, personal property, real property, or pets that go through the probate process
- Who you want to act as your Personal Representative (some states call this the Executor) i.e. the person that manages the probate process for your family
If someone dies without a will (called intestacy) then we must follow state law. There are default state statues that instruct the court as to who has priority to act as personal representative and to whom assets are distributed.
There are some surprising examples of what actually happens to assets under Arizona law, especially with blended families where a spouse has a child from a previous relationship. For example, Sally and Bob are married. Bob has children from a previous relationship. Bob inherited his families’ farm which is titled in his name alone and he has kept it separate from the community property he shares with Sally. Bob suddenly dies without ever creating his will. First, all of the community property will be divided equally and Sally will get her 50% share of the community property. Bob’s estate will be distributed as follows:
- Bob’s 50% of the community property will be awarded to his children equally.
- All of the separate property will be split equally: 50% of the family farm will go to surviving spouse, and the other 50% will go to Bob’s children equally.
For most blended families, this is not the scenario they expected. I recently had a probate estate for a widow who was married 18 years before her husband passed away. Husband’s 20 year-old-daughter received all of the husband’s community property assets. Assets that the husband and wife had spent 18 years building together.
There are no state defaults as to whom will be chosen to raise a decedent’s minor child. In those extremely sad cases, there is litigation for a judge to make the determination as to who will raise the child based on what the judge believes is in the child’s best interest. These trials can be very stressful and contentious. They also come at a time when I child is grieving the loss of a parent and now is uncertain who will raise them or even where they will live. How dare we as parents leave this critical decision about our most precious assets to someone we don’t even know!
Lastly, in Arizona, one may create a holographic will that is handwritten and signed. A holographic will does not need to be witnesses or dated, but it is advisable to at least date the document. Holographic wills are mostly created in emergency situations or end-of-life situations in hospitals where there is not enough time to create a proper will. The drawback of holographic wills is that there is greater risk of making errors in the document that may invalidate the will.
Do you want the court to decide who will raise your children? Or to whom your probate assets should be distributed? If not, I recommend you see an estate planning attorney who can advise you as to what provisions to place in your will based on your family and your goals. A comprehensive and properly drafted will can help ease your families pain and expense during a probate process.
Considering Gandolfini’s Will
LLast June, “Sopranos” actor James Gandolfini died of a heart attack at the age of 51. Shortly after his death, Gandolfini’s will became public. Since then, experts have considered the wisdom of the provisions in his will. As a recent article explains, experts believe that Galdolfini’s will was so poorly drafted that it may invite lawsuits from his heirs.
Experts are quick to point out what they believe to be poor tax planning in the will. An estimated $30 million of Gandolfini’s $70 million estate will be paid out in estate taxes. This large tax bill could have been reduced through the utilization of trust accounts, as well as other estate planning maneuvers that would have transferred a larger amount of his assets outside of probate.
Gandolfini could have also kept more of his estate plan private via the use of a revocable trust. Revocable trusts are not only easy to set up, but are also typically inexpensive as well. Many people choose to couple a revocable trust with a “pour-over will,” which simply pours all will assets into the revocable trust.
Another flaw in Gandolfini’s will is that it divides his assets via percentages between his wife, sisters, and daughter. Although seemingly fair, this is problematic because while his wife’s percentage will transfer free of tax, the other percentages will not. It, therefore, takes a difficult calculation to determine how his wife’s distribution will influence the remaining funds.
Updating Your Will with a Codicil
Executing a will is a great way to begin the estate planning process. However, it is important to continually update a will as your circumstances change. Marriage, having children or grandchildren, a major change in your finances, and the sale of a house are all examples of situations where it can become important to update your will.
In California, updating your will can be accomplished by executing a document knows as a codicil. A codicil acts should reference the changes to your old will by paragraph. Much like when you created the original will, you will need two witnesses for the codicil. Importantly, neither of these witnesses may be a beneficiary under a will. After you execute the codicil, it will act as an amendment to the original will. The original document will remain effective, absent the changes in the codicil.
Do not attempt to update your will by crossing out provisions and adding new information on your own. The new information you add will not be considered part of the will if it is challenged in court. You may want to consult a qualified estate planning attorney to insure that any changes to your will are properly executed. This can help provide you with the peace of mind of knowing that your assents will be handed down in the way chose.
How Should I Update My Will
Most people realize that an estate plan should be revised and updated throughout the various stages of a person’s life. A recent article discusses what changes should be made based on different changes in a person’s circumstances.
Your Financial Status Has Changed
If your income or property has increased or decreased dramatically, your estate plan should be adjusted to reflect that change. You may have to plan to avoid taxes that you wouldn’t have otherwise faced. Moreover, it may be financially effective to consider setting up a trust to guide the distribution of assets.
You Have Moved to Another State
The laws of the state you reside in when you die will govern your estate plan. Therefore, if you draft a will in one state, then move to another, it would be a good idea to sit down with an estate planner in the new state and go over your plan.
Your Children and Grandchildren Have Changing Needs
You may also decide to update and change your will based on the changing needs of your children and grandchildren. You may wish to create a trust to hold your child’s inheritance so that it only pays for education expenses. Moreover, your children or grandchildren may develop medical conditions that require you to provide money for them now, rather than later.
I Have a Will, Is My Estate Plan Complete?
More and more individuals are turning to the Internet to cheaply create their Last Will and Testament. Although a will is a vital part of any estate plan, a good estate plan includes more than a will. A recent article discusses three additional documents individuals who just have simple wills should consider executing.
- Beneficiary Designations: Beneficiary designations are a person’s selections for who will receive the proceeds of life insurance policies, retirement accounts, bank accounts, annuities, and other accounts that are transferred via contract. It is important not only that an individual names a primary and contingent beneficiary for each of these accounts, but also that he or she updates these designations regularly.
- Financial Power of Attorney: A financial power of attorney allows an individual to select the person that he or she would like to manage his or her financial affairs. If an individual got into an accident and was incapacitated in the hospital, for example, his or her power of attorney would be able to continue paying his or her bills, and otherwise managing his or her financial and legal decisions.
- Medical Power of Attorney: A medical power of attorney allows an individual to select the person that he or she would like to make medical decisions on his or her behalf. An individual’s medical power of attorney will be able to access the patients medical records, and will be responsible for ensuring that medical professionals honor an individual’s living will.
Is Writing a Will like Backing up Your Computer?
A little planning prevents a lot of trouble later. Its the same in life as it is in computing.
A story in Time compared the two. The writer was distraught as her computer was, in essence, given its last rites. But since she had backed up everything important on the hard drive, her anxiety was lessened and she was able to resume her daily activities with minimal interruption.
That is what estate planning is all about, the article pointed out. You manage all your unorganized financial affairs so your loved ones don’t have to do it from scratch.
The problem is that 41 percent of Baby Boomers and 71 percent of those under age 34 don’t have wills, says a study cited in the article.
That’s the same as not backing up the important stuff on your computer.
It means your loved ones will have to sort through your affairs, causing them all kinds of grief and expense.
The message is clear: prepare a will that names individuals who are responsible for settling your estate, taking care of your children, and managing trusts you may have set up for others.
Also: prepare an up-to-date list of all your financial assets and liabilities, and appoint a durable power of attorney as well as a power of attorney for health care and draw up a living will. And review the documents regularly in case things change.