Many people are surprised to discover that if they die without a will, Arizona has laws (intestacy laws) that will provide for the distribution of their assets. However, there are many advantages to using an Arizona will rather than relying on the intestacy laws, some of which are: 1) providing for dependents, 2) suggesting guardians for dependents, and 3) directing the distribution of assets.
1) Providing For Dependents
For many people, the principal reason to have an estate plan is to provide for the financial needs of loved ones who most need financial support, e.g. young children or dependent's with special needs. There are many ways in which a will can provide for these loved one, however, at the most basic level, a will often creates a trust that shall contain assets solely for the benefit of a particular dependent and for the benefit of no one else.
2) Suggesting Guardians For Dependents
Along with providing for the financial needs of dependents, another key advantage of having a will is to suggest guardians for living dependents. Although the courts will not always place a person's dependents with the person or people suggested in a will, courts will usually do so unless there is good cause not to appoint the suggested guardians.
3) Directing The Distribution of Assets
Arizona's intestacy laws provide that if a person dies without a will, the ownership of that person's assets will be transferred to that person's living spouse, to that person's living biological or adopted descendants if there is no living spouse, to that person's living parents if there are no living biological or adopted descendants, to that person's living siblings if there are no living parents, to that person's living grandparents if there are no living siblings, to that person's relatives if there are no living grandparents, or to the state of Arizona if there are no living great grandparents.
Although this may be acceptable to some, there are many situations when this isn't desirable. For example, if a person has stepchildren whom he/she would like to provide for, absent a will, they will not be provided for. However, if that same person has a will, he/she will be able to direct his/her assets in any reasonable manner.
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.
A. 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.
B. 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.
C. Holographic Will Requirements
The materials 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.
Power of Attorney
Along with death, there is one other key consideration for which a person must plan in order to take care of his/her obligations: incapacity. Further, the way in which incapacity is typically planned for is via a power of attorney. In the event a person becomes incapacitated, he/she cannot legally act for his/her own benefit. A power of attorney allows someone else to act in the place of the person granting the power of attorney.
Generally, when an attorney drafts a will for a person, the attorney often drafts a power of attorney for testator in the event he/she becomes incapacitated.
Testator – Person making and executing the will.
Testatrix – Sometimes used to refer to a female testator.
Beneficiary – Person that receives a benefit from a decedent’s probate estate pursuant to a will or to a trust created pursuant to the terms of a will.
Heir – Person who receives a benefit from a decedent’s estate pursuant to Arizona’s intestacy statute, rather than pursuant to a will.
Personal Representative – Person nominated pursuant to the terms of a will to administer a decedent’s estate. In other states, such person is often called either and executor or executrix.
Disclaimer – In Arizona, if a person disclaims his/her interest in a decedent’s estate, the law treats such disclaimant as if he/she predeceased the decedent.
Intestacy Statute – Arizona law that provides for the disposition of a decedent’s estate if the decedent did not have a valid will or was otherwise intestate.
Probate – Court-monitored process of validating a will, gathering the assets of a decedent, paying valid creditor claims, and distributing the probate estate of the decedent pursuant to either the terms of the will or Arizona’s intestacy statute.
Probate Estate – Assets, debts, or other rights owned by a decedent, which are not otherwise subject to transfer via beneficiary designation, joint tenancy, community property with right of survivorship, etc.
Gross Estate – All of the assets, debts, or other rights of a decedent.
Estate Tax – The federal government and some states (not including Arizona at the time of this writing) levy and collect a tax upon the “privilege of transferring property at death,” often depending upon the size of the decedent’s gross estate.
Testamentary Trust – Trust created pursuant to the terms of a will for the benefit of beneficiaries and to be administered by a trustee.
Trustee – Person who holds legal title to property owned by a trust for the benefit of the trust beneficiaries.
Living Will – Articulates a person’s end-of-life medical treatment desires.
Guardian – Person appointed by a court of competent jurisdiction to care for person – called a “ward” – who lacks the legal capacity to act for him/herself as to all of the ward’s personal affairs.
Conservator – Person appointed by a court of competent jurisdiction to care for person – called a “ward” – who lacks the legal capacity to act for him/herself, but is only applicable to the ward’s financial affairs.
Ward – Person who is legally incapacitated and who is cared for pursuant to either a guardianship, conservatorship, or both.
Agent / Attorney in Fact – Person nominated to act of behalf of the maker of a power of attorney.
Healthcare Power of Attorney – Power of attorney that enables an attorney in fact o act on behalf of the make of the power of attorney as to healthcare matter.
Durable General Power of Attorney – Power of attorney that enables an attorney in fact to act on behalf of the make of the power of attorney as to financial matters.
The discussion above is a basic overview of the considerations associated with wills in Arizona. Always consult a qualified legal professional before making any legal decisions.
Mesa, AZ Office
Our Mesa, Arizona office is in the heart of downtown Mesa. It is located one block north of Main and Center Streets on Pepper Place, at 40 N. Center St. #110, Mesa, AZ 85201.
Douglas K. Cook is an Arizona attorney with over 40 years of experience as a practicing attorney. Although Cook & Cook's office is located in Mesa, Arizona, the attorneys at Cook & Cook represent clients throughout the Phoenix, Arizona Metropolitan area including the following east valley cities: Scottsdale, Paradise Valley, Tempe, Chandler, & Gilbert.