10 Common Questions People Ask About Wills

10 Common Questions People Ask About Wills2017-10-08T09:48:10+00:00

1. What is a Will?

A Will, or Last Will and Testament, is a legal document in which a person (called a “testator”) directs what should happen to his or her property after death. Each state has different requirements for a Will to be valid in that state. For more information on these requirements in Arizona, please see my article called For a Will to be Valid, What Does Arizona Law Require?

2. Who Needs A Will?  Why?

Every adult should have a Will.  In Arizona, an adult is anyone age 18 or older.  Some important reasons to have a Will are:

• You can name someone to act as a guardian for your minor children. A guardian is responsible for raising your minor children in the event of your death.

• You can state what should happen to your property after your death.

• You can reduce the expenses of administering your estate and speed up the probate process.

• You can name the person you want to handle your estate.

• You can ensure your loved ones are well taken care of when you are not able to do so yourself.

3.  Does a Will Need to be Witnessed or Notarized?

Most states require that a Will is witnessed by one or more competent persons. In Arizona, two witnesses are required. Witnesses must see the testator sign or be informed by the testator that the signature is the testator’s. The witnesses must sign in the presence of each other and the testator.

The only exception to the witness requirement is for holographic Wills. A holographic Will is one where the provisions directing the disposal of the testator’s property are in the testator’s handwriting, the Will is signed by the testator, and the document indicates that the testator intends to dispose of his or her property with that document.

Arizona state law does not require that a Will be notarized. However, we highly recommend that anybody who makes a Will has it notarized. If the testator’s and witnesses’ signatures are notarized, the Will is considered “self-proved” under Arizona law. If a Will is self-proved, a court will automatically accept the Will as authentic. This means that witnesses to a self-proven Will are not required to testify in court that the Will is valid.

4.  How Long is a Will Valid?

A Will is valid until you revoke it. A Will can be revoked by physically destroying it (tearing it up, burning it, shredding it, etc.), by executing a new Will that specifically revokes the old Will, or by making a new Will that completely disposes of your estate. If the new Will does not completely dispose of your estate, it is presumed to supplement, rather than revoke your old Will.

Portions of your Will can also be revoked in other ways. Most states have “slayer statutes” which provide that if a person who is named as a beneficiary in a testator’s Will murders the testator, all gifts to that person are revoked. Also, Arizona law provides that if you made a Will while you were married and later get divorced, any gifts to your former spouse are revoked along with any nominations to a fiduciary capacity (like a personal representative, agent or guardian).

5.  Can a Will Be Changed?

Of course! Your Will does not take effect until your death. That means you can change it at any time as long as you are mentally competent. You can amend certain provisions of your Will (called a “codicil”) or you can revoke your old Will and make an entirely new Will. Often, the most common thing that people want to change is the disposition of their tangible personal property. Tangible personal property includes items like jewelry, china, art, furnishings, antiques, collections and the like. Instead of seeing a lawyer and amending or revoking your Will every time you want to make a change, we recommend having a Personal Property Memorandum as an attachment to your Will. A Personal Property Memorandum lets you change where your tangible personal property should go without having to see a lawyer or amend your Will. For more information, please see my articled called Choosing Who Will Inherit Your Personal Property – A Personal Property Memorandum.

6.  Who Makes Sure My Wishes Are Followed?

The person responsible for carrying out your wishes as set forth in your Will is called your personal representative (or “executor” in some states).   Your personal representative will gather your assets, administer your estate, begin a probate proceeding if necessary, distribute property to your beneficiaries per your instructions in your Will, complete your final tax return, and pay taxes and other debts of your estate. You name your personal representative in your Will. Your personal representative must be over the age of 18, and should be someone you trust.

7.  What Happens If I Don’t Have a Will?

If you don’t have a Will, the state will make one for you. Each state has its own set of laws called the laws of “intestate succession”. These laws dictate what happens to someone’s property when they don’t have a Will. Typically these laws provide that your estate will go to your surviving spouse and/or children, but do not expect that will necessarily happen in your specific situation. There are MANY factors that can change that general rule. For more information on Arizona’s laws of intestate succession, please see my article Who Gets My Property If I Die Without a Will or Trust?

8.  Can I Use Joint Ownership Instead of a Will?

You can but it’s not a good idea. Joint ownership between husband and wife can result in excessive estate taxes. Another potential problem is whether or not the surviving spouse actually distributes the property according to the deceased spouse’s wishes. Joint ownership between parents and children is also not a good idea. This could lead to disputes among family members and cause unnecessary gift taxes. This could also result in financial disaster for the child if the owners of the asset get sued and have a judgment entered against them.

9.  Is a Trust a Substitute for a Will?

A Revocable Living Trust can be a valuable part of many people’s estate plans. Trusts are typically used by people who want to maximize estate tax savings and avoid probate. However, a Trust is not a substitute for a Will.  If someone has minor children, they must have a Will that names a guardian to raise their children if something happened to them.  Also, if all of a person’s assets are not in their trust,  a Will is still needed to dispose of those assets that are not in the Trust. In this situation, the Will would be referred to as a “Pour-Over Will” since the Will “pours” all of a person’s remaining assets into their Trust.

10.  Who Should Create Your Will?

Since your Will determines how your family will be cared for and what will happen to your life savings, a Will should only be drafted by an attorney who is familiar with your state’s estate planning laws. There are a number of pitfalls and caveats that must be guarded against to ensure your wishes are followed. Many online legal document preparation companies do not know the individual laws of each state, which could result in a long and costly legal headache for your loved ones after your death. In addition, a lawyer who is knowledgeable about estate planning can counsel you with regard to your personal estate planning needs. This includes giving you instruction on modifying your beneficiary designations – a critical part of estate planning, and discussing options about healthcare agents, Living Wills and the like. To contact me, Richard Keyt, to discuss your personal estate planning goals and options, please call me at 480-664-7478 or send me an email at rickkeyt@keytlaw.com.

Hire Richard Keyt to Prepare Your Arizona Will and Estate Plan

A Will is a critical component of any estate plan.  It will save your loved ones the heartache and stress of having to sort out your estate, hoping to do what you might have wanted.  A Will gives you peace of mind that your wishes will be followed, and that YOU, not your state of residence, determines how your property will be distributed.  In addition, YOU, not a judge, will pick your personal representative, who will manage your estate.  Finally, YOU, not a court, determine the best person(s) to raise your minor children when you appoint a guardian in your Will.  A Will, prepared by an attorney who understands your particular situation, will help you achieve these goals.

You don’t have to spend thousands of dollars to have an attorney custom prepare your Will and ancillarye state planning documents.  With a Will-based KEYTLaw estate plan, you get a Will and much more.  You also get a Healthcare Power of Attorney, Living Will, Financial Power of Attorney and Personal Property Memorandum, all at the low cost of $1,247 for a single person and $1,497 for a couple.  To hire KEYTLaw Arizona estate planning attorney Richard Keyt (480-664-7478 or rickkeyt@keytlaw.com) to prepare your Will based estate plan complete our online Estate Plan Questionnaire.