Popular Myths about Wills:

Myth #1:
“If you die without a Will, all of your property passes to the state.”

TRUTH: In the absence of a Will, a decedent’s estate passes according to the laws of “intestate succession”. Arizona’s laws of “intestate succession” state that before a decedent’s property passes to the State of Arizona it passes to certain relatives of the decedent in the following order of priority:

Spouse (and descendants if some are not descendants of spouse)
Descendants (i.e., children, grandchildren, etc.)
Parents
Descendants of parents
Grandparents
Descendants of grandparents

MYTH #2: “Everyone needs a Will.”

TRUTH: For many people (e.g., a married couple with no children), the laws of intestate succession may provide for the same disposition of their property as they would provide in a Will.

MYTH #3:“Only a lawyer can draft a Will.”

TRUTH: Each state has its own requirements regarding what constitutes a validly executed Will. In many states (including Arizona), if the signature and the “material provisions” of a Will are in the handwriting of the person making the Will (the “Testator”), it is a valid “holographic” Will (even if the document is not witnessed or notarized). However, many self-prepared Wills contain ambiguities that often delay the distribution of the decedent’s Estate and can lead to litigation.

Desirability of Having a Lawyer-Prepared Will:

Although not every individual may “need” a Will, there are many good reasons to have a Will. Even if the Will leaves the Testator’s assets to the same people who would inherit under the laws of intestate succession, it can be beneficial to have a Will to make it clear that this is what the Testator intended. In addition, typically individuals will want their assets to pass in ways that are different from the “default” laws of intestate succession. Among the advantages of writing a Will are the following:

Control the Disposition of Property:

A Will can provide for the distribution of property more precisely than relying on the laws of intestate succession. Specifically, a Will can address the following:

Distributees: A Will can provide who receives what property (even if the people are different than those who would inherit under the laws of intestate succession).
Tangible Personal Property: Often a person will want to make specific provisions in the Will for items of personal property of significant value (e.g., jewelry, china, silver, art, collections, etc.). In addition, a person might desire to make special provisions by a separate written statement (referenced by the Will) for one-of-a-kind items of tangible personal property (e.g., family heirlooms or memorabilia) whether or not they have significant financial value.
Other Important Assets: Many people own assets that may require special attention, such as (i) residences, (ii) other real estate, (iii) tax- preferred accounts (e.g., pension plans, profit-sharing plans, 401(k) accounts, IRA’s, etc.) and employee benefits; and (iv) business interests (e.g., partnerships, limited liability companies, closely-held corporations, etc.).

Control the Timing of Distributions:

A Will made in conjunction with a Living Trust (or transferring assets into a separate Trust), can provide for delays or conditions affecting both the amounts and the timing of distributions to beneficiaries. This can be particularly important when providing for a Testator’s children, when the Testator may wish to control such things as:

Management for younger children: How assets are to be administered and distributed while the children are minors or “unemancipated” adults (i.e., adults still financially dependent up the Testator and/or not sufficiently mature and responsible to handle an inheritance without assistance from others).
Division into shares: The age(s) at which children’s inheritances should be divided into individual shares for each child.
Distribution: The age(s) at which each child should become the owner of, or have control over, his or her share.

Nomination of Fiduciaries:

A Will may nominate (and, therefore, give priority for appointment to) certain people or entities to act as fiduciaries upon the death of the testator. These may include a Personal Representative to administer the Testator’s Estate at death; a Trustee to administer any Trusts created by the Will; and one or more Guardians or Conservators for the Testator’s minor (under 18) children.

Personal Representative: A Will may nominate a person or entity to act as Personal Representative of the Testator’s Estate at his/her death. The Personal Representative (sometimes called an “Executor” or “Administrator” in other states) is responsible for taking possession and control of the deceased Testator’s assets, identifying and paying legitimate bills and creditor claims, handling final tax matters for the decedent, and then distributing the remaining Estate assets according to the terms of the Will.
Trustee: If the Will creates a Trust within the Will document, then the Will typically will nominate the person or entity whom the Testator desires to act as Trustee of the Trust. The Trustee will be responsible to administer, invest, and distribute the assets according to the terms of the Trust set forth in the Will.
Guardian: A Will may provide for the appointment of one or more Guardians for the minor (under 18) children of the decedent. If there is no surviving parent, the person nominated as Guardian in the Will of the deceased Testator has priority for appointment as Guardian. In absence of such a nomination, a court will appoint an individual whose appointment would be in the “best interests” of the minor.

Wills