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What's a Will For?

A Last Will and Testament is the way to designate the distribution of assets after we die. If no Will exists, assets are distributed in accordance with the Arizona Revised Statutes.

Under A.R.S. §14-2101, if a person is married, all of the assets go to the person's current spouse unless the person had children who are not issue of that spouse. When there are children from outside the marriage, then without a Will, those children will get half of their natural parent's sole an separate property and all of their natural parent's half of the community property. Thus, everyone who has step-children should make sure that they and their spouse have a Will.

If a person is not married, then without a Will, assets will go to the living children. If there are no children, then assets will go to the family members in the following order: parents; if no living parents, then to siblings; if no siblings, then to grandparents; and if no living grandparents, then to the grandparent's descendants (i.e., aunts and uncles or cousins). If no such relatives can be found, then the assets could go to the state.

When there is a Will, the recipients of our assets are called devisees or legatees. The Will can provide that devisees receive the property outright or in trust. If the property is placed in trust, then it can be protected from the creditors of the devisees. Such creditors can only obtain distributions from the trust but cannot invade or take the principal of the trust.

If the devisees are minors, then the trust can limit how much income or principal the minor will receive. If the devisees have special needs or require government assistance, the trust can be worded so the devisee will not lose government assistance and the trust assets will provide the most financial help.

Wills also allows us to distribute tangible personal property. The Arizona legislature has recognized that we continually buy and sell tangible personal property, like jewelry, cars, art or household effects. Therefore, under A.R.S. §14-2513, a handwritten list can be attached to the Will which designates who should receive certain tangible personal property. There is no limitation on how often the handwritten list can be changed. However, the Will must reference that the handwritten list should be followed.

For people with minor children, the Will provides a way to nominate who should be the guardian and the conservator of them. The "guardian" has custody of the child and protects the well-being of the child. The "conservator" protects the assets owned by the child. While the guardian and conservator can be the same person, sometimes the perfect guardian cannot be the perfect conservator. For example, if the guardian has children of his own, then being conservator could cause a conflict between what he wants to provide for his children and the assets which are supposed to be used only for your child.

Even if a person has a revocable living trust, a Will is necessary to make sure that any property or assets not titled in the trust will be placed in the trust. In order to avoid probate with a revocable living trust, assets should be titled in the name of the trustees; for example, "Jane and John Doe as Trustees of the Doe Revocable Trust, dated January 1, 2002." Any deeds which transfer property into a revocable trust should reference that an Affidavit of Value need not be filed due to the exemption in A.R.S. §11-1134(B)(8).

These are just the highlights of the benefits of a Will. A Will can also be beneficial for business purposes, to limit estate taxes and for charitable giving. Creativity and consultation with a competent estate planning attorney is all that is needed to customize a Will and avoid dispute of its terms.

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