Many people are somewhat familiar with the concept of a will, but in case you’re not:
A will is a legal document that declares your last desires about: a) who you would like to care for your minor children; and b) how and to whom your property should be distributed; after your passing.
Most people, however, are surprised to learn that a will applies to some types of assets, but not others.
Let's take a look at some types of assets can be subject to the terms of a will:
- Real estate not titled in joint tenancy or community property with right of survivorship;
- LLC membership interests;
- Partnership interests;
- Shares of stock;
- Automobiles; and
- Other personal property.
For some people, the types of assets listed above may be of significant value, however, we find that for most people, their most valuable assets aren't even subject to the terms of a will, such as:
- Real estate titled in joint tenancy with right of survivorship;
- Real estate titled as community property with right of survivorship;
- Life insurance;
- Bank accounts titled in joint tenancy with right of survivorship;
- Bank accounts titled as community property with right of survivorship;
- Individual Retirement Accounts ("IRA");
- Other retirement account governed by ERISA.
So, if a will doesn't affect these assets, which are commonly called non-probate assets, what does? Well, the answer is a typical-lawyer answer: "it depends." Suffice it to say, many of these assets include beneficiary designations, which allow you to specify who will receive them, but this isn't always the case.
People often believe that estate planning is only for those who have substantial assets, but estate plans can benefit everybody.
Arizona Will Requirements
Arizona law provides for three types of wills: (1) attested wills, (2) self-proved wills, and (3) holographic wills. In any case, however, the person making the will — called a testator — must be at least eighteen (18) years of age and be of sound mind.
The requirements for all three types of wills are set forth in A.R.S. § 14-2501, et seq. Below is a summary of those requirements.
1. Attested Will Requirements
An attested will will must be:
- In writing;
- Signed by the testator or in the testator's name by some other individual in the testator's conscious presence and by the testator's direction;
- Signed by at least two people, each of whom signed within a reasonable time after that person witnessed either the signing of the will as described in paragraph 2 or the testator's acknowledgment of that signature or acknowledgment of the will.
2. Self-Proved Will Requirements
A self-proved will must meet all the requirements of an attested will but must also: (a) include affidavits by the witnesses before a notary public and (b) be notarized.
3. Holographic Will Requirements
The material provisions must be in the testator's handwritting and the will must be signed by the testator.
What's The Difference?
In essence, the difference between the three types of wills is time and succeptiblity to contest. In general, the more formailities that are observed, the less time it will take to probate the will, all things considered, and the more difficult it will be to contest the validity of the will.
What If There Is No Will?
Arizona law contains intestacy statutes — ARS § 14-2101, et seq. — that provide for the distribution of a decedent's assets if the decedent did not have a valid will. In general, the statutes provide the following:
A. If there is a surviving spouse:
The following part of the intestate estate, as to both separate property and the one-half of community property that belongs to the decedent, passes to the surviving spouse:
- If there is no surviving issue or if there are surviving issue all of whom are issue of the surviving spouse also, the entire intestate estate.
- If there are surviving issue one or more of whom are not issue of the surviving spouse, one-half of the intestate separate property and no interest in the one-half of the community property that belonged to the decedent.
ARS § 14-2102.
B. If there is no surviving spouse:
Any part of the intestate estate not passing to the decedent's surviving spouse under section 14-2102 or the entire intestate estate if there is no surviving spouse passes in the following order to the following persons who survive the decedent:
- To the decedent's descendants by representation.
- If there is no surviving descendant, to the decedent's parents equally if both survive or to the surviving parent.
- If there is no surviving descendant or parent, to the descendants of the decedent's parents or either of them by representation.
- If there is no surviving descendant, parent or descendant of a parent, but the decedent is survived by one or more grandparents or descendants of grandparents, half of the estate passes to the decedent's paternal grandparents equally if both survive or to the surviving paternal grandparent or the descendants of the decedent's paternal grandparents or either of them if both are deceased with the descendants taking by representation. The other half passes to the decedent's maternal relatives in the same manner. If there is no surviving grandparent or descendant of a grandparent on either the paternal or the maternal side, the entire estate passes to the decedent's relatives on the other side in the same manner as the half.
ARS § 14-2103.
This brief overview of some important considerations associated with Arizona will requirements is by no means comprehensive. Always seek the advice of a competent professional when making important financial and legal decisions.
Steve Cook is a estate planning lawyer at Cook & Cook. Although his main office is located in Mesa, Arizona, he represents clients throughout the Phoenix, Arizona Metropolitan area including the following east valley cities: Scottsdale, Paradise Valley, Tempe, Chandler, & Gilbert.