The executor (aka the personal representative) is the individual you nominate to manage your estate when you die. The executor will be tasked with submitting your will to the probate court, notifying interested parties of the probate proceedings, gathering your assets, settling your liabilities, distributing your assets, and closing your estate. Given the weight of this responsibility, it’s important to nominate someone who is highly competent and trustworthy. It’s also a good idea to nominate a backup executor, just in case your first pick is unable to do the job.
The Guardian
If you have minor children, you’ll want to name a guardian to care for them in your absence. Don’t always assume that your spouse or significant other has the inherent legal authority to take the kids, especially if your partner is not the biological or adoptive parent. If you name your spouse or partner as guardian, be sure to name one or two backup guardians who can care for your children if your spouse or partner passes away with you.
Simple Asset Distribution Instructions
This is the part of the document that separates a simple will from a complex one. Simple wills usually offer basic instructions for estates that aren’t large enough to qualify for estate taxes, and that don’t have complicated business interests. For small estates with a single beneficiary, it may be sufficient to simply list the beneficiary and indicate that all of your assets are to transfer to them upon your death. Larger estates with multiple beneficiaries can still be handled with a simple will, as long as the instructions aren’t too complicated.
Regardless of the estate’s size or number of beneficiaries, it’s always a good idea to include contingent beneficiaries who can receive the assets if the primary beneficiary passes away at the same time. If your estate is large enough to qualify for estate taxes, or if you own business interests that you’d like to pass to your children, then you’ll need to construct a complex will with the assistance of a qualified estate planning attorney.
Note that not all assets should be addressed in your will—only assets that are subject to probate need to be included. Individual bank accounts, brokerage accounts, privately-held real estate, tenants-in-common real estate, and personal household possessions will need to transfer ownership through probate. You should address each of these in a simple will, or at the very least include language that addresses all of these types of assets and clearly indicates who is to receive them.
Assets that have a contractual beneficiary listed on the account will transfer to your heirs automatically upon your death, and therefore don’t need to be addressed in the will. Assets that are not subject to probate include joint tenancy real estate, accounts with a payable-on-death beneficiary, retirement accounts, life insurance policies, and trusts.
Testator and Witness Signatures
While handwritten wills don’t require witness signatures, a simple typed will requires at least two witnesses. The testator will need to sign in the presence of the two witnesses, and the witnesses need to sign the will within a reasonable amount of time after witnessing the testator’s signature. When the witnesses sign the will, they are attesting to 3 important things:
- That the testator is an adult of sound mind
- That the testator is not under duress or undue influence
- That the testator’s will and signature are valid
Self-Proved Wills
For simple wills signed by two witnesses, a judge may summon the witnesses to probate court to testify as to the will’s validity and authenticity. To avoid that possibility, the testator and witnesses can sign in the presence of a notary public. Notarized wills are referred to as self-proved wills, and don’t require witness testimony to authenticate the will.
What Happens if You Die Without a Will?
When someone dies without a will, they die “intestate,” and their assets are subject to the state’s intestate succession laws. If someone dies with a will but the document is successfully contested and invalidated by a judge, their estate is also subject to intestacy laws. Either way, intestacy proceedings leave the decedent’s family members with little say over who receives which assets, and the probate process will usually take longer to conclude.
In the state of Arizona, the decedent’s spouse and children have the initial claim to the estate (ARS 14-2102). If all of the decedent’s children were conceived with the current spouse, or if there are no children at all, then the spouse receives all of the assets. If any of the children are from a separate relationship, the current spouse will receive half of the estate, and the children from other relationships would split the remaining 50%. If the children are minors, the court will need to appoint a conservator to manage the assets on their behalf until they turn 18.
In the absence of a spouse and children, the decedent’s family members are entitled to the estate in the following order (ARS 14-2103):
- The decedent’s parents
- If the parents are deceased, then the decedent’s siblings (with representation)
- If the parents and siblings are deceased, then the decedent’s grandparents (with representation)
The phrase “with representation” means that the descendants of the rightful heir can claim a portion of the inheritance if the progenitor is deceased. For example, a decedent’s niece may claim a portion of her uncle’s estate if her parent (the decedent’s sibling) is deceased. Similarly, a decedent’s aunt may claim a portion of the estate if the decedent’s grandparents are deceased. If there are no family members to claim the estate, the state can claim the assets.
Call Arizona Estate Attorney Dave Weed at (480)467-4325 to discuss your case today.
