The Difference Between Will and Living Will
What a Will Can Do
You May Not Know
Where There Is a Will, There Is a Way
Famous People and their Wills
Will with a Codicil
When Should I Update My Will
Estate Plan Complete with a Will?
Questions & Answers

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

A Will can help you accomplish all the following goals:

  • Allow you, not the state, to determine who receives any 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
  • Designate 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.

The Difference Between Will and Living Will

Despite the word “will,” a living will has nothing to do with how you choose to leave your assets when you die. Instead, a living will details your wishes regarding medical intervention in the event you face an end-of-life event such as terminal illness or traumatic injury leaving you in a persistent vegetative state or irreversible coma. A will, sometimes called Last Will, is a document that may be filed with the probate court when you die that details to whom you want your probate assets to go.

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 the following are typically required:

  • The Will must be in writing
  • The signing of the Will must be witnessed by at least two people who also sign the Will as witnesses
  • The person creating the Will must have mental capacity 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 call this person an “executor.” 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 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 and who manages your affairs after you die you should have a will. However, there are many things about wills that a lot of people don’t know.

1) You must follow formalities, even in the digital age

Laws concerning wills are among the oldest on the books—dating back to ancient Greece and Rome. Many laws still require wills to either be in your own handwriting (if your jurisdiction allows it) or signed in the presence of 2-3 witnesses who may then need to testify in court after your death that the will was validly signed. In some cases, witness signatures may be able to be notarized, eliminating the need to testify. Each state as difference rules on how a will must be validly executed.

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 raise your minor children if something happens to you, to name one. If you don’t name a guardian, a judge will name one without any guidance from your wishes.

3) Even if you have a will, certain state laws must be followed

Some jurisdictions restrict disinheriting a spouse or certain children. Some states treat an ex-spouse named in a will as disinherited unless you updated your will after the divorce. Some jurisdictions don’t allow a beneficiary to receive any inheritance if they were responsible for your death. 

4) Your will can’t control who gets certain assets

Many exceptions exist. These include accounts that have beneficiaries such as life insurance policies and retirement accounts.

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 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:

  1. Bob’s 50% of the community property will be awarded to his children equally.
  2. All the separate property will be split equally: 50% of the family farm will go to Sally, 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 a 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 or certain provisions.

Do you want the court to decide who will raise your children? Or to whom your probate assets should be distributed? If not, we 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 family’s pain and expense during a probate process.

Famous People and their Wills

Surprisingly, famous people often have estate plans that are written poorly. Since large sums of monies can be at stake, expensive and very public litigation typically ensues.  Here are several stories from a recent article.

Jim Morrison left a 2-page will when he died. He was only 27, but he owed 25% interest in his band “The Doors,” which was worth millions. He left his entire estate to his girlfriend, who died 3 years later without a will. The monies went to her parents, however Morrison’s parents sued, and the parties settled out of court.

Actor Robin Williams had a will that left most of his estate to his children, but allowed his wife to live in a certain house until her death and then the children would inherit the house. Because the will was vague regarding personal items that were in the house, a bitter and expensive legal battle caused significant disputes.

Anna Nicole Smith’s husband -who was 69 years older than her- left his estate to his son Howard. Because he did not update his will after he and Anna were married, Anna sued Howard in probate court. Litigation lasted more than 20 years, after both Anna and Howard had already died.

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 Arizona, updating your will can be accomplished by executing a document knows as a codicil (an amendment). A codicil 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. You can also revoke a prior will and execute a new will.

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 ensure 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.

You can also revoke a prior will and execute a new will.

When 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 when changes should be made based on a person’s changed circumstances.

You are Thinking About Divorce

If you are considering divorce, you should consider updating your will before you file. Some jurisdictions don’t allow you to update a will while a divorce is being finalized.

Your Beneficiary Develops a Substance Abuse Problem

If you are leaving monies to someone who is addicted to drugs, or has creditor issues, you should consider updating your will or entire estate plan to include a trust. This can allow for someone else to manage this beneficiary’s money for them. 

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.

New Legislation is Passed

State laws govern will, however, federal laws passed by Congress may also affect your plan such as the “Tax Cuts and Jobs Act” and “SECURE Act.” You should sit down with an estate planner every few years to go over your plan and determine if any recent laws affect your will.

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 several additional documents individuals should consider executing. Here are three.

  1. Beneficiary Designations: Beneficiary designations are a person’s selections for who will receive the proceeds of assets such as life insurance policies and retirement accounts. It is important not only that you name a primary beneficiary, but also name a contingent beneficiary for each of these accounts. You should update the designations regularly.
  2. Durable Power of Attorney: A durable power of attorney allows you to assign someone to act on your behalf. For example, this person can enter financial transactions and make legal decisions for you.
  3. Healthcare Power of Attorney: A healthcare power of attorney allows you to select the person you would like to make medical decisions on your behalf. You should choose someone you trust who will make decisions you would agree with.


Wills FAQ’s

Most people realize that an estate plan should be revised and updated throughout the various stages of a person’s life. In order to be valid, it needs to be executed properly per state law, which can vary from state to state. You should see an attorney for proper advice.

Although a will is a vital part of any estate plan, a good estate plan includes more than a will.

A will, when you have a trust, is a little bit different. It’s called a “Pour-over Will.” It’s truly a backup plan for the trust. If your trust isn’t funded properly and there’s an asset in your individual name when you die that has to go through the probate process, then your will directs where the probate assets should go to.

It’s called a Pour-over Will because it simply pours over right into your trust. So even when you have a trust, you should have a will. Generally, we never need it but it’s there just in case.

A Will is the document that allows you to name a guardian for your minor children and distributes assets to chosen people. Think of it as, “Who raises my children and who gets my things?” A Living Will is very different. It is what decisions do you want to have made in case of a major medical catastrophe, such as being in an irreversible coma or persistent vegetative state.

No. It merely tells what the judge to do is you have assets that must go through the probate process.

Handwritten changes very rarely work. A lot of it will depend on the rules of the state that you execute that document in, what the rules of valid execution are.

A will is also known as a Last Will and Testament. It 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.

The maker of the will, called the testator, must be the legal age of majority. In Arizona, that age of majority is 18 years old.

A person who creates a will needs testamentary capacity. Generally, this means a person is capable of knowing and understanding in a general way 1) the nature and extent of their property, 2) the natural object of their bounty (individuals who are close in relationship), and 3) the ability to understand the nature of the testamentary act. Mental capacity is required at the time the will is executed and adults are presumed to have mental capacity.

If you die without a will, it means you have died intestate. When this happens, the intestacy laws of the state where you reside will determine how your property is distributed upon your death. This includes any bank accounts, securities, real estate, and other assets you own at the time of death that are subject to probate. The court will appoint someone to handle this process.

Your Last Will and Testament, along with your life insurance, are both necessary parts of your estate plan. Life insurance pays a death benefit to any person or organization you name as a beneficiary on your policy outside of your will. Your Last Will and Testament only distributes the assets left to your estate that did not have a beneficiary on them or were not titled in the name of a trust.

For those who remarry and want to make sure certain assets get passed on to kids from a previous marriage, it’s important to meet with an attorney to do comprehensive estate planning. These types of plan typically will include some type of trust.

In Arizona, yes. A hand-written will does not have to be witnessed or notarized to be legal, but witnesses and notarization may move it through the probate court more quickly because the court will not have to validate your handwriting. There is no guarantee your wishes will be taken into consideration if you hand write your Will if it is not written properly.

Even if you have not undergone any significant life changes, it is advisable to review your will every few years to check that it still reflects what you want it to say and to find out if there have been any changes to the law that might affect your will.

Yes. We recommend every adult has a will. If you die, it lessens the cost and administration of the probate process if one is required. It becomes increasingly more important to have a will if you have family members you are legally responsible for, are married, or have minor kids.

A will, also known as a last will, distributes a person’s property after his death. A living will, on the other hand, explains what kind of medical care that person wants when he is still alive but unable to communicate his wishes if he is in a certain medical condition such as a persistent vegetative state or irreversible coma.

Yes. Many people confuse living wills with living trusts because they are both estate planning documents and they sound so much alike. But living wills and living trusts serve two entirely different purposes. A living trust covers who manages your trust assets while you are alive and how you want them distributed at your death. A living will covers only what happens if you’re in certain medical conditions.

Yes, all wills have the potential to be contested. If your will is made while you are of sound mind, and is executed properly, you stand the best chance of your wishes being adhered to.

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