Estate Planning With Wills
What is a Last Will and Testament?
A will is a legal document that directs your Agent/Personal Representative, to how and whom to distribute your assets when you pass. Our Lawyers at Arizona Law Doctor are here to help with any questions about the process you may have!
How do I know if my Will is valid in Arizona?
In Arizona, a will must be validated during the probate process. To be valid, you must be 18 years or older, be of sound mind to create a will, and must sign your will or have someone else sign in your name, in your presence, and at your direction. Additionally, you are required to have at least two witnesses who must also sign your will. WARNING: A notary does not count as a witness for your will. Our knowledgeable attorneys can review your estate plan to make sure your wishes will be fulfilled. Call us today for a free evaluation.
What can my Will distribute?
You have the right to distribute your property in (almost) any way you wish. Be aware, however, that Arizona has probate laws in place that might limit your wishes at times. For example, you cannot completely exclude your spouse from receiving a portion of your estate no matter what your Will says. Arizona does not allow for a spouse to claim an “elective share.” However, a spouse has right to his/her share of community property.
A.R.S. § 25-211 Property acquired during marriage as community property; exceptions; effect of service of a petition
- All property acquired by either husband or wife during the marriage is the community property of the husband and wife except for property that is:
- Acquired by gift, devise or descent.
- Acquired after service of a petition for dissolution of marriage, legal separation or annulment if the petition results in a decree of dissolution of marriage, legal separation or annulment.
- Notwithstanding subsection A, paragraph 2, service of a petition for dissolution of marriage, legal separation or annulment does not:
- Alter the status of preexisting community property.
- Change the status of community property used to acquire new property or the status of that new property as community property.
- Alter the duties and rights of either spouse with respect to the management of community property except as prescribed pursuant to section 25-315, subsection A, paragraph 1, subdivision (a).
A.R.S. § 25-213. Separate property
- A spouse’s real and personal property that is owned by that spouse before marriage and that is acquired by that spouse during the marriage by gift, devise or descent, and the increase, rents, issues and profits of that property, is the separate property of that spouse.
- Property that is acquired by a spouse after service of a petition for dissolution of marriage, legal separation or annulment is also the separate property of that spouse if the petition results in a decree of dissolution of marriage, legal separation or annulment.
- Notwithstanding subsection B of this section and section 25-214, subsection C, a mortgage or deed of trust executed by a spouse who acquires the real property encumbered by that mortgage or deed of trust after service of a petition for dissolution of marriage, legal separation or annulment shall be enforceable against the real property if the petition does not result in a decree of dissolution of marriage, legal separation or annulment.
- A contribution to an irrevocable trust that has or will have as its principal asset life insurance on the person making the contribution is a contribution of the insured’s separate property if the spouse of the insured is the primary beneficiary of the trust.
A.R.S. § 25-214. Management and control
- Each spouse has the sole management, control and disposition rights of each spouse’s separate property.
- The spouses have equal management, control and disposition rights over their community property and have equal power to bind the community.
- Either spouse separately may acquire, manage, control or dispose of community property or bind the community, except that joinder of both spouses is required in any of the following cases:
- Any transaction for the acquisition, disposition or encumbrance of an interest in real property other than an unpatented mining claim or a lease of less than one year.
- Any transaction of guaranty, indemnity or suretyship.
- To bind the community, irrespective of any person’s intent with respect to that binder, after service of a petition for dissolution of marriage, legal separation or annulment if the petition results in a decree of dissolution of marriage, legal separation or annulment.
A.R.S. § 25-215. Liability of community property and separate property for community and separate debts
- The separate property of a spouse shall not be liable for the separate debts or obligations of the other spouse, absent agreement of the property owner to the contrary.
- The community property is liable for the premarital separate debts or other liabilities of a spouse, incurred after September 1, 1973 but only to the extent of the value of that spouse’s contribution to the community property which would have been such spouse’s separate property if single.
- The community property is liable for a spouse’s debts incurred outside of this state during the marriage which would have been community debts if incurred in this state.
- Except as prohibited in section 25-214, either spouse may contract debts and otherwise act for the benefit of the community. In an action on such a debt or obligation the spouses shall be sued jointly and the debt or obligation shall be satisfied: first, from the community property, and second, from the separate property of the spouse contracting the debt or obligation.
A.R.S. § 25-217. Ownership of property acquired after moving into state
Marital rights in property which is acquired in this state during marriage by persons married without the state who move into the state shall be controlled by the laws of this state.
A.R.S. § 25-218. Surrogate parentage contracts; prohibition; custody; definition
- No person may enter into, induce, arrange, procure or otherwise assist in the formation of a surrogate parentage contract.
- A surrogate is the legal mother of a child born as a result of a surrogate parentage contract and is entitled to custody of that child.
- If the mother of a child born as a result of a surrogate contract is married, her husband is presumed to be the legal father of the child. This presumption is rebuttable.
- For the purposes of this section, “surrogate parentage contract” means a contract, agreement or arrangement in which a woman agrees to the implantation of an embryo not related to that woman or agrees to conceive a child through natural or artificial insemination and to voluntarily relinquish her parental rights to the child.
Can I revoke or modify my Will?
A will may be modified or revoked at any time. WARNING: Make sure that any changes to your will are made in compliance with Arizona law. Failure to properly comply with Arizona law may lead to Formal Probate to correct those errors. Our knowledgeable attorneys can review your estate plan to make sure your will is in compliance will Arizona law. Call us today at 623-236-2476 for a free Evaluation.
Can I avoid Arizona Probate by making a Will?
Unfortunately, not. In Arizona, all Wills, even “Pour-over Wills” require some level of probate. Our skilled Estate Attorney will educate you on ways to avoid probate. Call us today at 623-236-2476.
Why do I need a Will?
If someone passes away without a properly executed will, they have died intestate. This means that your property will be distributed in accordance with Arizona’s intestacy laws and not by your express wishes.
You can control where your property goes through a Will:
If you want say in where your assets will go after you pass away you will need an effective estate plan which includes a Last Will and Testament. Creating a will gives you control over how you want your assets distributed after you are gone. You do not have to have large amounts of assets for this to be important. Think of the assets and personal property you have. There may be things of monetary value like your car or your home, electronics, furniture, collectibles, home decorations, tools, jewelry, bank accounts, ect. There may also be things of great personal value like your family heirlooms, wedding rings, pictures, ect. Treasured personal items are also important to provide for in your will. Think of things that may carry special significance for your loved ones. These things can be worth more than money and will take on a whole new level of value after you pass. Make sure they end up in the hands of the loved ones who will cherish them. This can be accomplished by creating a will.
You can control who manages your estate through a Will:
Additionally, you may select a personal representative, or executor, to carry out the terms of your will. If you do not expressly select a personal representative in your will, a court will appoint one. Creating a will allows you to ensure your estate will be managed by someone you trust and who will effectively carry out your express wishes.
You can direct who will care for your children through a Will:
Most important of all, if you have minor children or a special needs adult child, you can name a guardian for your children in your will. No one likes to think that they may have to leave their children. It is a difficult thought to confront, but one that is so important. A will allows you to select a person that would best care for and love your children. The peace of knowing your children will have this even when you are gone can give you peace of mind like few other things can. In determining who you want to act as guardian for your children, there are several important things you will want to consider:
- What is the person’s relationship like with your children?
- Will this person be able to provide a stable and loving environment?
- Does the person have the ability to financially provide care for your child?
- What is his or her current health like? Will they be able meet the activity requirements for keeping up with your child?
- Would your child need to relocate?
- Would the child still be access to your relatives?
- If you have selected a married couple to act as guardians, what would happen if they were to separate or divorce? Would you want to select an alternate guardian to assume their duties?
Creating a will allows you to reflect on these important questions and also discuss the situation with the person you are considering as a guardian. You can make sure they feel comfortable with assuming the role of guardian of your child should you pass away. Additionally, you can select a person to manage property you leave to your minor children.
A will is a great way to secure a future you want for your children. A will can help ease the pain of losing a loved one. Without a will, your family and loved ones are left wondering what your wishes would have been for all of your personal property. Make the situation easier on them by memorializing your wishes in a will. Our knowledgeable attorneys can help you ensure wishes for your children will be fulfilled. Call us today at 623-236-2476 for a free consultation.
Other important must have documents with your Will can be found through a Power of Attorney.