One of the most important estate planning documents every person should have is a Will or Last Will & Testament. We recommend that every person, regardless of age or estate value, execute a Will to properly express their wishes for estate division and distribution; possession of personal effects, valuables, and pets; protection of children; designation of a guardian/custodian; and burial/cremation preferences.
Generally speaking, a living will is an instrument that is executed with all the same formalities as a Last Will & Testament, by which a person states their intention to refuse all medical treatment and to release healthcare providers from all liability if the person is both terminally ill and incapable of communicating their refusal.
Practice Point: In Arizona, living wills are both recognized and honored. A person may execute a living will exclusively or make the living will a part of their Power of Attorney. A healthcare provider that follows good faith healthcare decisions based on the provisions in the living will may not be held criminally or civilly liable for their actions.
A Will serves many purposes, not only for the individual testator, but also for the legal system in general. First, a properly executed and legally valid Will protects the testator’s directives once the testator has passed away. Second, the proper execution of the Will assures the testator that his or her directives will be honored after death. And finally, the Will itself serves as the primary evidentiary document in cases of contests..
The general purpose of executing a Last Will & Testament is to protect you and your assets. Wills protect your wishes after you have passed and ensure that your wishes are carried out by those who survive you. Furthermore, executing a Will protects the diposition of the property, assets, valuable family heirlooms, keepsakes, and money you have worked for and acquired during your life. In essence, by executing a Will you are not only protecting yourself and your property, but you are also protecting the loved ones that survive you.
Another valuable purpose for executing a Will is the ritual function the document serves. By executing your Last Will & Testament you are saying to the world that you understand the significance of the document, your understand the property you have acquired and own, and you are making a declaration of how you want your property distributed after you pass on. The ritual of executing a Will (in the presence of an attorney, witnesses, and a notary public) enables you to show the world that you are declaring how you wish your property to be distributed after you pass on. Furthermore, by following the ritualistic procedures for executing a Will, you reduce the possibilities of Will contests or disagreements among family members and friends after you are gone.
As stated above, by completing the ritualistic procedures of executing a valid Last Will & Testament, you provide the best evidence to the world that you were competent when you executed your Will and that the Will accurately represents your personal wishes as to how your estate shall be distributed. The best evidence in a court of law as to the validity of your Will and your true intentions is a validly executed Last Will & Testament. By executing the valid Will you have created a document that will protect your interests and wishes after you are gone.
The content of a Will is unique. No two Wills are alike. Your property will pass to those persons or organizations that you designate. We will determine the appropriate words and language to ensure your document is legally enforceable.
A Will or Last Will & Testament is generally defined as a document by which a person directs how his or her estate will be distributed upon death. A Last Will & Testament simply denotes the final Will executed by a person prior to death.
A Will is said to be ambulatory in that it may be altered during a person’s lifetime. All Wills may be altered prior to death so long as the person has testamentary capacity.
Simplicity Note: In Arizona, there are a few ways in which a person may alter their Will prior to death. A codicil is a written document that is executed with the same formalities as a Will. A codicil is generally defined as a supplement or addition to a Will that modifies, makes additions to, or revokes certain provisions in the original Will.
Practice Point: Instead of creating an entirely new Will, a person may save time and money by executing a codicil to modify or change the original disposition of property in the Will. Even if you currently have a valid Will in Arizona, we may help you execute a valid codicil if you wish to change your original Will. Codicils save money and time.
A conditional Will is a Will that depends on an uncertain event occurring prior to the Will taking effect. For example, a Will may be deemed to only take effect if “at my death I am survived by my three (3) children.”
Practice Point: Conditional Wills are confusing and do not protect the person executing the Will. Conditional Wills are not practical estate planning devices and are not recommended.
Just as the conditional Will mentioned above, a contingent Will is a Will that only takes effect once a specified event occurs. For example, a Will may be deemed to only take effect when, “at my death I am survived by my three (3) children.”
Practice Point: Again, contingent Wills and conditional Wills are disfavored because of their confusing nature and probability of never fully taking effect. The only way to truly secure your wishes is to execute a final Will that will take full effect upon your death with no concurrent conditions or contingencies.
Arizona is one of a few states that recognizes holographic Wills. A holographic Will is a Will that contains the signature of the testator and the material provisions of the Will are in the testator’s handwriting. Arizona does not require that a holographic Will be witnessed, dated, or entirely handwritten by the testator.
Practice Point: As a general proposition, holographic Wills are disfavored. The uncertainty and arguable nature of a holographic Will is the primary problem. For example, if a testator executes a final Will distributing all of his or her estate and then, upon death, a holographic Will is found among the testator’s possessions, the contents of the holographic Will may be disputed in court through a Will contest (see below) or completely invalidate the entire Will executed by the testator. The only way to finalize and secure your personal wishes for distributing your estate is to execute a valid and formal Last Will & Testament.
A joint and mutual Will is a Will executed by two or more testators, disposing of property they own jointly or separately, and requiring the surviving testator to dispose of the property according to the terms of the joint and mutual Will. The term “joint” refers to the form of the Will and the term “mutual” refers to the provisions of the Will.
A pourover Will is simply a Will giving money, property, or assets to an existing trust at the time of the testator’s death.
Practice Point: A pourover Will is a necessary estate planning document, if a person has created a valid and existing trust during his or her lifetime. However, it should be noted that a pourover Will is of no effect if the testator has failed to properly create a valid trust during his or her lifetime.
A Will contest an argument brought by a person who has a direct financial interest in the property of the decedent. The Will contest must be brought before the court with jurisdiction over the distribution of assests under the Will and the contest must be brought within the statute of limitations for bringing Will contest claims. In Arizona, person(s) contesting the Will have the burden of proving the testator’s lack of testamentary intent or capacity at the time the Will was executed, undue influence on the testator at the time of execution, fraud, duress, mistake, or revocation.
Wills & You
Why YOU need a Will?
A Will is a most crucial document for every person, whether young, old, single, or married. Essentially, a Will protects you by dictating and enforcing your personal wishes after you have passed on. A Will is designed to direct disposition of your assets and personal belongings after you are gone. Your Will can give instructions as to your wishes for disposition of your personal belongings, children, pets, how you would like your funeral and burial arrangements to be, and who you would prefer not to share in your estate. Wills are not just for older people. We all need protection once we are gone and we all need to help our loved ones deal with our affairs and property after we have passed on.