Last Will and Testament in Arizona
A Last Will and Testament in Arizona is a legal document that allows you to provide direction on how to divide your assets and who you wish to be appointed to act as the guardian of your minor children. There are, however, several important limitations associated with using a Will as your only estate planning document. For example, assets held as Joint Tenants With Rights of Survivorship will automatically pass to the joint asset holder regardless of the terms set forth in your Will. Bank accounts with “Payable on Death” designations, as well as retirement accounts and life insurance policies with beneficiary designations, will pass automatically to the named beneficiaries regardless of the terms set forth in your Will. There are also statutory allowances due to a surviving spouse that may affect the assets available to your other heirs.
If you are considering using a Will as your primary estate planning tool, you should first consult with a qualified Arizona estate planning attorney to review the current title designations affecting your real property, beneficiary designations on your other financial, retirement, and life insurance policies, and the Arizona statutory allowances granted to your spouse as a matter of law. Please contact our Scottsdale estate planning lawyers today if you have any additional questions regarding a Last Will and Testament in Arizona.
What Are the Different Types of Wills in Arizona
You have a few options with respect to the creation of a Will in Arizona. In less complicated matters, an Arizona Simple Will is typically sufficient to provide for the payment of your debts and the distribution of your assets. In more complicated matters, such as when a person owns a business or has extensive assets, an Arizona Long Form Will is typically preferable, as well as the creation of an Arizona Family Trust.
Many estate planning attorneys will also advise you to create, among other things, an Arizona Living Will. A Living Will contains your directives to medical professionals as to the type of life-saving and/or life-sustaining medical efforts you authorize in the event you become incapacitated and are unable to make those decisions. You should consult with a qualified Arizona estate planning attorney to determine what type of Arizona Will is suitable for you and your family.
Using No Contest Provisions in a Last Will and Testament or Family Trust
Many people choose to include a no contest provision to their wills and living trusts. A no-contest provision is included to dissuade family members and/or other heirs to contest the validity of the will or trust in an attempt to obtain more than they were allotted in the estate planning documents. A no-contest provision helps to resolve that issue by providing that anyone who contests the will and fails to prove their case in court loses some or all of their share of the inheritance.
The inclusion of a no contest provision in Arizona will have been authorized by statute. However, there is no such statute providing for use of no contest provisions in a Living Trust. Fortunately, the Arizona Court of Appeals in the In re the Shaheen Trust case indicated that a no contest provision in a Living Trust is just as enforceable as in a Will; despite the statute remaining silent as to the use of such provisions in a Living Trust. You may wish to read our article on the In re the Shaheen Trust case for more detailed information about a no contest provision in a Living Trust.
A Will is a written document that allows you to divide your property in a manner you choose. There are some laws, however, that impact the decisions you may make in a will. Arizona technically does not allow you to disinherit your spouse. For example, Arizona Revised Statute Section 14-2402 provides your spouse with an $18,000.00 Homestead Exemption. Arizona Revised Statute Section 24-2403 provides your spouse with a $7,000.00 Exempt Property Allowance. Arizona Revised Statute Section 14-2404 provides your spouse with a Family Allowance.
However, you may own property that you made specific beneficiary designations upon which automatically go to those stated beneficiaries. For example, you may have designated beneficiaries on your life insurance policies, your bank accounts, investment accounts, retirement accounts and the like. Your Will, therefore, will not pass those assets because they are controlled by those beneficiary designations.
Arizona Simple Will Versus a Family Trust
As Simple Will is used in Arizona when the sole desire is to distribute all of a person’s assets upon his or her death. A Family Trust is added when the person does not wish to immediate distribute their assets but, instead, wants to control the distribution of his or her assets. For example, if a person has children he or she may not want those children to receive all of their inheritance at once. Instead, they may want the Trust to make payments to the children over time.
These trusts can either be created during your lifetime, which is referred to as an Inter Vivos Trust. Alternatively, the Will itself can indicate a Family Trust is to be created after a person’s death, which is referred to as a Testamentary Trust. Either trust may be either a revocable or irrevocable Trust. As the names describe, a person who creates a Revocable Trust may change or completely dissolve the Trust during his or her lifetime. The person loses the ability to dissolve an Irrevocable Trust.
In addition to handling your financial affairs, you may indicate who you want to receive guardianship rights over your children. Although that designation can be challenged and it must be reviewed by a judge, your preference will be given weight in the appointment of that guardian.
Our Arizona estate planning attorneys understand the importance of providing peace of mind to our clients by ensuring their families will be cared for and supported in the event of their passing. Please feel free to contact one of our Arizona estate planning lawyers today by calling (480) 947-4339 regarding any questions you may have regarding establishing your estate plan.