Wills are used to designate who gets your property after you pass away. Drafting a will is sometimes the first and only order of business necessary to get your affairs in order. Other times, however, various other estate planning devices preclude the need for a will.
Do I need a will?
An estate planning lawyer is best suited to help you determine whether you need a will. If any of the following apply, however, you should probably include a will in your estate plan:
- If you or your spouse have any children which are not born of the present marriage or partnership.
- If you have personal affects that you want to give to a specific person or organization.
- If you own more than one parcel of real estate.
- If you wish to divide your assets disproportionately among your heirs.
- If the value of your estate exceeds the Federal Tax Lifetime Exemption Amount.
- If you wish to name a guardian for your minor child.
Who can create a will?
Anybody of sound mind can create a will. More precisely, to create a will you must:
- Be able to identify your property;
- Know who your family members and close friends are;
- Understand you are creating a will;
- Understand that your will gives your property to those identified in the will.
The law does not limit the drafting of wills to only attorneys, although it is useful to recruit an estate planning lawyer to assist with the process. Arizona law allows for holographic – or handwritten wills – but a more formal will is easier to prove if disputes arise. Wills should be signed by two witnesses who do not stand to inherit anything under the will, and the will should be signed and dated.
What can I accomplish with a basic will?
More often than not a will is the single most important tool when it comes to estate planning. If you do nothing else to arrange your affairs you should at the very least prepare a basic will. An estate planning attorney is not necessary to draft a basic will; there are books and tutorials to guide you through the process. You should be able to draft a valid will without legal assistance which:
- Designates an executor to handle your affairs after you are gone.
- Designates a guardian for minor children.
- Designates an individual to manage property given to minor children.
- Gives your assets to people and organizations of your choice.
One drawback to relying exclusively on a basic will is that it does not avoid probate. Most often, however, a basic will is relied exclusively upon only by relatively young and healthy individuals with smaller estates so the probate issue is generally not a pressing concern.
Who should use only a basic will?
A basic will can be sufficient for healthy individuals under the age of 55 who do not foresee owing estate tax at death. Further planning is likely required for individuals who:
- Want specific control over their assets after they die.
- Wish to create a special needs trust for a disabled child.
- Anticipate owing estate tax.
- Foresee a will contest.
When should I consider including more than just a will in my estate plan?
It is true that a will is better than nothing when it comes to estate planning. However, there are many tools available to create a comprehensive estate plan that will save time and money for those you leave behind. Depending on where you are at in life, you may want to consider implementing some planning devices in addition to a will. Most people in their twenties or thirties are doing pretty well if they even have a basic will in place. Young people with children may wish to add life insurance to their plan which can provide for the kids if the unexpected arises.
It takes most people until they reach their forties before they begin thinking about a will. If you do not have a will at this stage of your life, now is the time to create one. In addition to a will, you should consider other planning devices. A revocable living trust can spare your loved ones from the probate process and it is scarcely more difficult to create than a will. Payable on death accounts are an even simpler way to avoid probate. You may also want to counsel with an estate planning attorney about more complex types of trusts if you have substantial assets.
When should I consider making changes to my will?
Your will should always reflect your current life situation. Anytime you undergo a serious life changing event you should consider revising your will. It is appropriate to change your will frequently if circumstances require it. The following life events may give cause for changing your will:
- You get married, remarried or obtain a new partner.
- You have a child or acquire stepchildren.
- You get a divorce.
- You acquire a significant asset.
- You dispose of a significant asset.
- You simply change your mind about who you want to provide with an inheritance.
How can I change my will?
You can utilize one of two methods to change your will. The first is to create a codicil, which is something like an addendum. Codicils can be used to either add or revoke a provision, but if not drafted carefully they can create confusion and discrepancies with the will itself. It generally makes more sense to simply draft a brand new will. Upon creating a new will you should destroy the old one and include a statement revoking all other wills and codicils. If you have changed your mind about who is to receive an inheritance, remember that certain assets such as stocks and payable on death accounts are not controlled by the will itself. You must change the named beneficiary on these assets in addition to changing your will if you decide to pass them on to somebody else.
What kind of matters cannot be handled in a will?
A will is indeed an effective and simple method of arranging your affairs but some matters just cannot be handled with a will alone. For instance certain types of property cannot be dealt with in a will. Pension plans, stocks, bonds, life insurance policies, jointly held property, property held in trust, and payable on death accounts all transfer to a named beneficiary upon your death without regard to your will. Also, wills are not effective at avoiding probate or reducing estate taxes. Finally, wills are not the best planning devices for placing conditions on gifts or leaving funeral instructions. You should fully explore your options with a qualified estate planning attorney.
Can I use a will to leave an inheritance to my children?
Parents should make plans to provide for their children in the event they die prematurely. In its simplest form this involves creating a will which provides an inheritance for the children. Problems can arise, however, when a minor child receives an inheritance. If arrangements have not been made, the probate court will appoint a property guardian who does not always turn out to be the best suited for the job.
If you are leaving an inheritance for your children you must consider the options available for property management once the child has taken the inheritance. Your first option is to simply name a property guardian in your will whom you believe has your child’s best interest in mind. Similarly, you could name a custodian under the Uniform Transfers to Minors Act. Lastly, you can retain more control over how the inheritance is dispersed to your children by utilizing a trust. Trusts can be used to place conditions such as age requirements on an inheritance if you would rather your children wait until a specified time to receive it.
It is always important to consider your children when creating a will or trust. But oftentimes just including them in the planning device is not enough. Without appropriate property management tools, inheritances are all too commonly squandered.
What happens if I die without a will?
State law determines who receives your property if you die without a will. The division begins with spouses and children, and then goes to other close family members if you have neither. If you do not have family then your property escheats to the state. If you have children, the state also determines who will act as their guardian. To have any sort of control over how your property will be divided you must have at least a basic will. This is particularly true if you are in a same-sex relationship because state law does not provide an inheritance to your partner unless specified in a will.
Can I disinherit my spouse or children?
Arizona is a community property state so half of all property you and your spouse acquired during the marriage automatically goes to your spouse. The property you owned prior to the marriage is separate property, as are certain gifts and inheritances you may have acquired during the marriage. You are not required to leave your portion of the community property nor your separate property to your spouse. You can provide an inheritance to anybody you choose with the use of a will. There are some circumstances where spouses can become disinherited of their portion of the community property, which generally require the assistance of an estate planning attorney.
Arizona law does not require that you provide your children with an inheritance. In instances where it looks like you accidentally left a child out of a will, however, the child can claim a portion of your estate.
Can my will be challenged once I pass away?
It is very rarely the case that a will is challenged; and it is even rarer for people to successfully defeat a will. In order for a court to declare a will invalid, it must be convinced that the will was forged; you were unduly influenced by another person; or you were not of sound mind when you created the will.
