Will the state get all of my money if I fail to write a will?
Probably not. The reason is that the legislature has passed a set of statutes called the "Laws of Intestate Succession" that control how your property passes at your death. It has been said that effectively, the legislature has written your will for you if you fail to write one yourself. According to the legislature, if you do not have children by a prior marriage, your present spouse, if you have one, is first in line to inherit all of your estate. If you have no spouse at the time you die, your children take your probate estate. If you have no spouse and no children, your parents would inherit. The statute becomes troublesome in the case of blended families. If you have children by a first marriage, they take all your separate property and your spouse takes all of your share of the community property. This runs counter to the desires of most people.
Another danger in relying upon the Laws of Intestate Succession as a substitute for a Will, is that these laws differ from state to state. If you should die a resident of another state, and you lack a Will, you may be unable to foresee who will receive your assets.
But back to the question, the State of Arizona becomes the taker of last resort of your assets, if there are no other takers under the Laws of Intestate Succession.
If I write a Will, can I disinherit my spouse?
Arizona law permits you to disinherit your spouse, but not completely. Upon your death, your spouse will be entitled to a package of statutory allowances from your estate, worth $37,000, or more. This means that your spouse will receive the first $37,000 from your estate, even ahead of your creditors. You can enter into a prenuptial agreement or a postnuptial agreement with your spouse to waive this right. Such agreements are strictly regulated by law; each side should be represented by legal counsel, and such agreements must be fair.
If I write a Will, can I disinherit someone by just leaving him $1. 00 (one dollar)?
If you leave them a dollar, your Personal Representative will have to find them and give them the dollar after you die. That might be more trouble than it is worth. The better way to disinherit someone in your will is to mention their name specifically and to state your intention that the person receive nothing of your estate.
Does a Will have to be prepared by an attorney?
No. As long as a Will follows the requirements for execution set forth in the Arizona Revised Statutes, it may be valid.
What are the top 5 reasons NOT to write your own Will?
- People who write their own Wills OFTEN use language that is not precise, and so the Will beneficiaries and the Court have a tough time understanding who is leaving what to whom.
- People who write their own Wills OFTEN think that their Wills can control the passage of property that cannot be controlled by a Will. For example, if you are the joint owner of a bank account with another person, and that other person survives you, your WILL does not control the passage of that bank account, which goes automatically to the surviving account holder.
- People who write their own Wills often do so with Will Preparation Kits that they find in office supply stores. Sometimes, the kits are defective. More often, the kit is OK, but the instructions are not clear, so the person fails to use the right form or fails to fill it in correctly.
- Lawyers make a lot of money in post-mortem litigation arguing over the meaning and the validity of handwritten Wills and Will Kit Wills.
- When you go to an attorney to do a Will, part of the process is for the attorney to learn about your assets to the end that they will pass in a manner consistent with your wishes. The point is that you are not just paying the attorney to fill out a form; you are getting much more.
Does a Will avoid probate?
No. A Will is a set of instructions to the Court on how your property is to pass at death. If you own property that needs to pass to others at your death by probate, the Will is what a Court will rely upon to decide who is appointed your Personal Representative. In contested cases, the Court will rely on your Will to decide who is entitled to your probatable assets upon your death. Many assets avoid probate just with the way they are titled. Life insurance policies, for example, do not pass through the probate process if you have named beneficiaries. Other assets that are owned by your Trustee under a Living Trust are not probatable because you do not own them at your death, your Trustee does!
Do all my assets have to be probated on my death?
No. Let us use the example of husband and wife who own the house as joint tenants with right of survivorship. Upon the death of the first spouse to die, the title to the house can be changed to the sole name of the surviving spouse without a probate.
There are other examples of assets passing without probate. In Arizona, your Will beneficiaries (or your heirs if you do not have a Will) can collect your personal property (bank accounts, stocks, etc. ) up to $75,000, without filing probate. The same applies to real property where the equity is $100,000 or less according tothe county tax assessment immediately prior to the date of death, however the collection of the property must wait at least six months after the date of death.
Does a Will control the passage of all my assets at death?
Not necessarily. Assets which pass by way of beneficiary designation are not controlled by the Will, if you have named a beneficiary. This applies to IRA's and other qualified retirement plans, life insurance policies and annuities. Bank accounts which pass to surviving joint holders are not probate assets and their passage is not controlled by your Will. Title to real estate held as joint tenants with right of survivorship passes outside the Will tothe surviving joint tenant.
If I have a Trust, do I need a Will?
Most people who set up a Trust during their lifetime (hence the term "Living Trust") do so to avoid probate. The Trust succeeds in avoiding probate only if all otherwise probatable assets are retitled in the name of the Trustee of the Trust. Sometimes people establish a living Trust but don't get around to retitling all the assets into the Trust before they die. Sometimes they become incapacitated as the result of an accident and they then receive settlement proceeds which are probatable. So in order to put the Trustee in control of how assets move after death, one does a Will leaving all assets to the Trustee of the Living Trust. Such a Will is called a "Pour-Over Will" because it pours over into the Trust.
When should I make changes in my Will?
- Review your will with a lawyer every 2-5 years.
Consider changing your will if a beneficiary dies.
STRONGLY consider changing your will if your spouse is going into a nursing home and will use the Medicaid Program to pay for long term care. In such an instance, if you leave your assets to your spouse, it may render him or her ineligible for Medicaid.
STRONGLY consider changing your Will if you are married and your assets come to do not exceed $5,400,000 (remember to include life insurance). You will not need a complex will to avoid estate taxes.
To change a Will, can I just cross out stuff on the old Will and write in new stuff?
If you do that, make sure that the estate has enough money in it to be able to afford handwriting experts, lawyers and other expenses of litigation.
Does a Will have to be witnessed?
A Will that is entirely in the handwriting of the Testator is a Holographic Will. Arizona Courts will give effect to a Holographic Will. Just remember that a Holographic Will is subject to the same shortcomings as any other Will you might write on your own. See What are the top 5 reasons NOT to write your own Will? Otherwise, Arizona law requires two adult witnesses on a Will. Interestingly enough, the Witnesses can have been named in the Will as beneficiaries.
Is a Will prepared in some other state valid in the State of Arizona?
Not automatically. The Will needs to pass Arizona's test for validity.
Is there a reason to do a Will even if I do not have much in the way of assets at present?
Yes, there are several reasons. You may acquire assets you never expected to own. One example is when you have an accident and your family secures an accident recovery for you. Your Will would direct the passage of those settlement proceeds upon your death. A second reason to have a Will, even if you have few assets, is to name a guardian for your minor children. A third reason is to settle the question of who you want to be Personal Representative of your estate.
Should a husband and wife do a Joint Will?
A joint will is a one will signed by two married people. For some reason, a lot of people from Missouri do Joint Wills. Joint Wills are a bad idea. When the first spouse dies, the Will of both the parties is filed in Court. How do you probate it in the second estate? Even if you overcome that hurdle, the other problem with Joint Wills comes when the second spouse dies years later. Then families fight over whether the making of a Joint Will constituted the making of a contract between Husband and Wife that neither would be permitted to change his or her Will after the death of the first spouse to die.
Where should I store my Will?
Put it in a fireproof place. Your freezer is not such a place. If you choose to store it in a bank safe deposit box, your survivors will have access to it after your death with very little trouble. Word to the wise: Let your Personal Representative:
a) know that you nominated him to be your Personal Representative
b) be a signer on the safe deposit box
c) know where you hid the key to the safe deposit box
Is it a good idea to use my Will to "get even" with those who have wronged me during my lifetime by complaining about their bad deeds within the text of the Will?
Bad idea. It is possible for your estate to get sued for libel for the bad things you say about others in your Will.
Is a Will Kit that I buy in the office supply store going to get me in trouble?
Often. People fill them out incorrectly. There is always limited space to designate beneficiaries and contingent beneficiaries.