It’s an unpleasant topic—planning for one’s own death—but it needs to be done. In fact, once estate-planning documents are drafted and signed, most people feel a giant weight lifted from their shoulders and wonder why they didn’t do it sooner. There are several essential documents that make up a complete estate plan for most people. In this article, we will address the Last Will and Testament (or the Will).
A Will addresses several critical decisions that must be made after someone passes. Primarily, it directs the distribution of property to one’s heirs and survivors. Property can include a home, other real estate, vehicles, money in the bank or investment accounts, furniture, jewelry, other possessions in a home, and even pets.
You may be thinking that you don’t own enough property or have enough money to make it worth your while to prepare a Will. But without a Will, upon your death, your property will be divided pursuant to Arizona statute. The result of this may be that your property could pass to your legal heirs—
children, parents, and siblings—against your wishes, and those you would have chosen—perhaps more distant relatives, friends, or unmarried partners—may not receive anything.
Regardless of the monetary value of your property, it may provide comfort to your loved ones to receive something thoughtfully designated by you, rather than by state law. If there is something special – a piece of jewelry, some artwork, an unfinished project that you’ve been working on—that you want to leave to a specific person, it can only be done via a Will.
It’s critical that your Will comply with Arizona law or you run the risk of having it declared invalid. In Arizona, any person 18 or older who has “testamentary capacity” may make a Will. According to the Arizona Court of Appeals’ decision in In re Estate of Killen, 188 Ariz. 562, 937 P.2d 1368 (App. 1996), testamentary capacity is (a) the ability to know the nature and extent of one’s property, (b) the ability to know the natural objects of one’s bounty, and (c) the ability to understand the nature of the testamentary act. Arizona courts presume the person making the will, or the testator, has capacity at the time the Will is signed. If someone chooses to contest the validity of a Will, the burden is on the person contesting the Will to prove that the testator did not have testamentary capacity.
Attested and Holographic Wills
According to Arizona law, a will is only valid if it (1) expresses the intent of the testator and (2) is either an Attested Will or a Holographic Will. An Attested Will is signed by the testator and witnessed by at least two people whose signatures appear on the Will itself. See A.R.S. § 14-2502. A Holographic Will is a document that is signed by the testator and has the material provisions in the testator’s handwriting. A.R.S. § 14-2503. To avoid the potential for future questions about the validity of a Will, many attorneys strongly recommend that, whenever possible, a testator follow the formalities of having at least two witnesses sign.
Following one’s death, the estate, which is the name given to the entirety of the decedent’s financial assets and property, must be probated. Probate is a process by which a designated person, the Personal Representative, settles the financial affairs of the decedent by paying all outstanding debts and distributing the decedent’s property. Unlike what many people think, probate can be a straightforward process if the decedent has done some basic planning in advance. Executing a Will is one of those planning steps.
You may be thinking that your family members will be cooperative enough to split everything fairly without any guidance from you. Unfortunately, you cannot predict that behavior, and many legal battles have been (and will continue to be) fought over the money and possessions of someone who died without a Will. In addition to the costs of fighting in court, these disputes often tear apart families at the very time they may need each other the most.
Estate planning, and creating a Will, is not only for people of substantial means. The most vital function of a Will is to communicate your wishes regarding your property, so that your loved ones don’t have to try to come to agreement or resort to using the legal system to resolve disputes. Preparing a Will is a gift you give to your family. Depending on your specific circumstances, additional estate planning—such as the creation of a trust—may be advisable. And as noted at the outset, other estate-planning tools (like the Healthcare and Financial Powers of Attorney and the Living Will) will be covered in later articles.
If you have questions about estate planning, please contact an attorney experienced in preparing documents that comply with the law and who can provide you with peace of mind.
NOTE: THIS ARTICLE IS FOR GENERAL INFORMATIONAL PURPOSES. IT DOES NOT CONSTITUTE LEGAL ADVICE, NOR DOES IT CREATE AN ATTORNEY-CLIENT RELATIONSHIP. EACH SITUATION IS DIFFERENT. YOU SHOULD CONSULT WITH AN ATTORNEY TO DETERMINE YOUR LEGAL RIGHTS, REMEDIES, AND DUTIES.
By Wendy M. Anderson, Esq.
Law Office of Wendy Anderson, PLLC
Contact Me Today