WHAT IS A WILL?
A will is a document by which a person declares how his or her affairs should be handled and property distributed upon his or her death. State law sets forth the basic legal requirements for making and signing a will. In Arizona, a valid will must, among other things, be (1) in writing; (2) signed by the maker of the will, or signed in the will maker's name by some other person in the will maker's conscious presence and at the will maker's direction; and (3) signed by at least two witnesses. A.R.S. sec. 14-2502.
WHAT IS PROBATE?
In Arizona, probate is a court-administered proceeding by which the assets and liabilities of a deceased person (a "decedent") are determined, paid and/or distributed by a personal representative who is designated by a will and/or appointed by the court. Arizona has three types of probate depending upon the circumstances - informal, formal and supervised. A simple, informal probate will generally take at least five to six months to complete, and can often take even longer.
DOES A WILL AVOID PROBATE?
Not necessarily. Although a probate is not always necessary in Arizona, a probate will often be required in order to carry out the terms of a will.
WHEN IS PROBATE NECESSARY?
Whether a probate is necessary in Arizona depends upon the facts and circumstances of each estate. Generally speaking, a probate may be necessary when one or more of the decedent's assets cannot be transferred without a probate, or the decedent's estate wishes to deal with creditor claims in a probate setting. For example, if the estate follows probate procedures properly, a creditor that fails to file a claim with the estate in probate within four months after the publication of a required notice is generally barred from pursuing its claim. In short, a probate proceeding may be required or desired.
WHY SHOULD I HAVE A WILL IF MY ESTATE MIGHT STILL NEED TO GO THROUGH PROBATE?
If a decedent dies without a valid will or trust, the decedent is said to have died "intestate." When decedent dies intestate in Arizona, the court will apply Arizona law to determine how the decedent's liabilities and assets will be handled, without regard to the decedent's wishes. If a person dies with a valid will and the estate goes through probate, the decedent's instructions in the will determine how the liabilities and assets will be handled. A will allows a person to control how his or her estate is administered.
CAN A WILL MAKE PROVISIONS FOR GUARDIANSHIP OF MINOR CHILDREN?
Another important reason to have a will is to designate a guardian for minor children in the event of the decedent's death. All parents with minor children should have a will designating a guardian for their minor children in the event that both parents pass away before the children reach adulthood.
WHAT IS A PERSONAL REPRESENTATIVE?
A will should designate a personal representative, sometimes called an executor or executrix in other states. The personal representative is a fiduciary who must observe high standards of care in handling the decedent's estate. The personal representative is under a duty to settle and distribute the estate of the decedent in accordance with the terms of any probated and effective will and Arizona law, and as expeditiously and efficiently as is consistent with the best interests of the estate. The personal representative shall use the authority conferred by Arizona law, the terms of the will, if any, and any order in proceedings to which the personal representative is a party for the best interests of successors to the estate. A.R.S. sec. 14-3703.
IS A WILL MADE IN ANOTHER STATE STILL VALID AFTER MOVING TO ARIZONA?
Arizona law states that a will executed under the laws of another state is valid if its execution complied with the law at the time of execution in the state where it was executed, or of the law of the place where at the time of execution or at the time of death the person was domiciled. A.R.S. sec. 14-2506. Nevertheless, any estate plan should be reviewed periodically or whenever there is a significant change in a person's family or financial circumstances.
ARE THERE OTHER BASIC ESTATE DOCUMENTS THAT I SHOULD HAVE BESIDES A WILL?
In addition to a will, a basic estate plan in Arizona will generally include one or more of the following documents: a living will, a healthcare power of attorney, and a financial power of attorney. A living will is a document that sets forth a person's desires regarding care in the event of a terminal condition. A healthcare power of attorney is a document giving a designated person the power to make decisions concerning healthcare in the event a person is physically or mentally unable to make such decisions on his or her own, regardless of whether his or her condition is terminal. A financial power of attorney is a document giving a designated person the power to make decisions concerning financial matters. For some estates, one or more trusts may be desirable as well.
YOU SHOULD ALWAYS CONSULT WITH AN EXPERIENCED AND KNOWLEDGEABLE ATTORNEY TO DETERMINE THE ESTATE PLAN THAT IS RIGHT FOR YOU.
THIS INFORMATION HAS BEEN ASSEMBLED FOR INFORMATIONAL PURPOSES ONLY. THE CONTENTS DO NOT CONSTITUTE LEGAL ADVICE AND SHOULD NOT BE CONSTRUED AS SUCH. DISTRIBUTION OF THE INFORMATION IS NOT INTENDED TO CREATE OR CONTINUE AN ATTORNEY-CLIENT RELATIONSHIP. WHILE THE INFORMATION IS STRICTLY LIMITED TO THE STATE OF ARIZONA, CHANGES MAY OCCUR IN LAWS OR REGULATIONS AFTER PUBLICATION OF THIS INFORMATION. AS A RESULT, THE CONTENTS MAY OR MAY NOT REFLECT THE CURRENT APPLICATION OF THE LAW IN ARIZONA OR IN ANY OTHER FEDERAL OR STATE JURISDICTIONS IN THE UNITED STATES, OR IN COURTS AND TRIBUNALS IN OTHER COUNTRIES. PERSONS RECEIVING THIS INFORMATION SHOULD NOT ACT UPON THE INFORMATION CONTAINED HEREIN WITHOUT SEEKING PROFESSIONAL COUNSEL FROM A LICENSED ATTORNEY.