A common question heard by many lawyers on a routine basis is “Do I really need a will? Requirements of a will are set forth in Arizona Revised Statutes § 14-2502. In general, a will is a document that provides directions for what happens to a person’s property after they pass away. A handwritten will is called a holographic will. This is a will that is written in the persons own handwriting and signed by that person as well. A more formal will must be typed, and will usually have two witnesses as well as be notarized.
In Arizona, a person’s will nominates a personal representative, sometimes more than one, to manage and distribute the estate. The estate is all the belongings, personal property, real property, savings accounts, really anything left behind when a person dies. In other states this is also known as an executor. When a person dies, this estate is administered pursuant to the will. This process is called probate. More about probate was covered in our previous blog, “Do I Need a Lawyer to Handle a Probate?” Except for the very rare case where someone has no possessions or heirs, everyone over 18 should have a will.
During the process of probate, if no will exists, the court can appoint any interested party to serve as personal representative. A full list is contained in Arizona Revised Statute § 14-1201. This section even allows for a creditor to be appointed personal representative if you don’t name one. Certainly nobody want their credit card company opening up a probate for them, so at the very least, having a will to appoint a personal representative is a good idea. Once the personal representative is appointed, the have the job of gathering all of the assets of the estate, paying any debts or taxes owed by the deceased, and distributing the remaining property to the named beneficiaries.
If no will is made, and no other designation is made, property will pass by Arizona law. This is typically distributed to the closest heirs in equal amounts. Beneficiaries of IRA’s or life insurance policies, or the type of accounts listed above pass automatically to the beneficiary upon death. This process is called intestacy and is generally governed by Arizona Revised Statutes §§14-2102 and 14-2103. A large estate isn’t required to need a will. As stated, any person who wants to specifically designate how their property is passed on can have a will. In the case of a small estate a previous blog discussed how to probate a small estate for both real and personal property.
It is not a requirement in the state of Arizona to have an attorney draft your will. In fact there are many online forms and document preparers that draft wills all the time. However, there are specific drafting requirements that must be met for a will to be valid. Therefore, having an attorney prepare your will for you is a good idea in most cases. If a handwritten or form will do not meet these requirements, a more costly and time consuming formal probate will be required. Moreover, there are sometimes when a simple will may not be the best solution to solving an estate plan. For these reasons and others, it is best to contact a lawyer to find out why having a will is better than not having a will, and also what other estate plan may work better for a particular situation. Platt & Westby has offices in Phoenix, Arrowhead, Litchfield Park, Scottsdale and Gilbert Arizona.
If you are interested in creating an estate plan, contact our office by calling 602-277-4441 or www.plattwestby.com for a free consultation with one of our experienced attorneys.