Wills

You can take care of a number of issues with a will.  Particularly for young couples, one of the most important reasons for having a will is to nominate a guardian for their children should they die while their children are minors, as well as provide for adult supervision of any property left to their minor children.  If you have not executed a will in which you have nominated a guardian for your children, the court may step in and appoint someone.

By having a will, you can not only choose who is to receive your property when you die, but you can also name an alternate beneficiary or beneficiaries if your first choice fails to survive you.  In addition, you can choose a personal representative to carry out your wishes.  If you die without a will in which you’ve named a personal representative, the court will appoint one.

When a person dies without a will, they are said to have died “intestate” and their property is distributed pursuant to Arizona’s statutes of intestate succession.

Types of Wills Recognized by Arizona Law

The Arizona Code recognizes holographic wills, attested wills, and self-proved wills.  To be valid, a will must comply with the execution formalities of either a holographic will or an attested will.  A holographic will does not require witnessing, but it must be signed by the testator, and the material provisions (which would include the identity of the testator’s property and the beneficiaries chosen to receive that property) must be in the testator’s handwriting.

An attested will must be in writing and signed by the testator and at least two witnesses.  The will does not have to be signed by the testator in the presence of the witnesses, and the witnesses do not have to sign in the presence of the testator or each other.  However, the testator must then tell the witnesses that the signature on the document is, indeed, the testator’s or that the document constitutes the testator’s will.

Most attorneys continue to execute an attested will with greater formality by having the testator sign in the presence of two witnesses, who then sign the will in the testator’s presence at his or her request, and in the presence of each other.  This helps prevent any question about the validity of the will if it must be probated in another state.

The advantage of a self-proved will is most evident in the event of a will contest.  Formalities of execution are conclusively presumed if a self-proved will is contested in a formal testacy proceeding.  An attested will may be self-proved either at the time of the original execution or later.  Regardless of when an attested will is made self-proved, the process involves an acknowledgment by the testator and affidavit of the witnesses before a notary public.  There are statutory requirements regarding the content of the language that must be included at the end of the will if it is to be self-proved.

Regardless of the type of will, the testator must be of sound mind to make a will.  To have sufficient mental capacity, the testator must understand the natural objects of his or her bounty, the kind or character of his or her property, and the nature of the testamentary act.

The Use of a Separate Personal Property List to Dispose of Specific Property

Certain tangible personal property may be disposed of by a separate written list, but there are some limitations and requirements.  The property and the recipients of that property must be described with reasonable certainty, the list must be referred to in a properly executed will, and the list must be either in the handwriting of the testator or signed by the testator.  In addition, property disposed of by the list must not be property specifically devised in the will itself, and is limited to tangible personal property.  For example, the list cannot be used to dispose of money or property such as bank accounts or securities, which are intangible personal property.

The purpose of this provision is to allow a testator to prepare a separate list of things such as jewelry, collections, pictures, furniture, clothing, and other personal effects he or she would like to leave to family and friends.  The advantage of a list such as this is that it may be made up after the execution of the will and completed or changed at a later date.  Although there is no limit on the value of the tangible personal property that may be disposed of by the list, it should be used to dispose of items of relatively small value, and valuable items should be specifically devised in the will.

Revoking a Will

A will may be revoked by a subsequent will or codicil properly executed, acts done to the original document itself, or by operation of law.  Wills may be revoked in whole or in part.

A testator may revoke a will in whole or in part by executing a subsequent will that revokes the previous will or part expressly or by inconsistency.  If a subsequent will does not expressly revoke a previous will, the execution of the subsequent will wholly revokes the previous will by inconsistency if the testator intended the subsequent will to replace rather than supplement the previous will.

A will can also be revoked by “burning, tearing, canceling, obliterating, or destroying” the will or any part of, regardless of whether or not the burn, tear, or cancellation touched any of the words on the will.  Regarding the status of a missing will, a 1998 amendment to the Arizona Code creates a rebuttable presumption that the testator destroyed the will with the intent of revoking it, if the original was last seen in the presence of the testator.  If this presumption arises and is not rebutted by a preponderance of the evidence, the will is revoked.  There are a number of issues regarding the revocation of a will by acts done to the original that are matters for litigation.

Subsequent wills usually contain a clause revoking prior wills.  If no such clause is included, the testator is presumed to have intended a subsequent will to replace rather than supplement a previous will if the subsequent will makes a complete disposition of the testator’s estate.  If this presumption arises and is not rebutted by clear and convincing evidence, the previous will is revoked and only the subsequent will is operative on the testator’s death.  The testator is presumed to have intended a subsequent will to supplement rather than replace a previous will if the subsequent will does not make a complete disposition of the testator’s estate.  If this presumption arises and is not rebutted by clear and convincing evidence, the subsequent will revokes the previous will only to the extent the subsequent will is inconsistent with the previous will and each will is fully operative on the testator’s death to the extent they are not inconsistent.

Pursuant to Arizona law, any disposition by will in favor of a spouse is automatically revoked by a subsequent divorce or annulment of the marriage.  This includes a devise, an exercise of a power of appointment, or a creation of a general or special power of appointment.  In addition, it includes nomination of the spouse as personal representative, executor, trustee, conservator, agent, or guardian.  However, the revocation does not operate if the will expressly provides otherwise.  This rule also applies to any issue of the spouse who are not also issue of the testator.

Another way a will, or a provision of a will, is revoked by operation of law is if a person “feloniously and intentionally” kills the decedent.  That person forfeits all rights in the decedent’s estate, which will then pass as if the killer disclaimed his or her rights.

The “120 hour survivorship” Rule

Pursuant to Arizona law, a devisee is required to survive a testator by one hundred and twenty hours.  However, this statutory requirement is superseded when the will contains a provision relating to survivorship.  For example, in an estate involving separate property, the will may contain a presumption that, in the event both spouses die together under circumstances where it is difficult, if not impossible, to determine who died first (such as in a plane crash), it shall be presumed the spouse survived the testator to ensure a marital deduction.  All people who have the right to an estate under intestate succession must survive the decedent by at least 120 hours.

Spouses and Disinheritance

In Arizona, a spouse is protected against disinheritance mainly because they own a share in the community property.  Except for limited allowances (homestead allowance, exempt property allowance, and family allowance), the surviving spouse has no statutory elections against the will.  Each spouse has power of testamentary disposition over only his or her half of the community property, as well as his or her separate property.  Both must join in the disposition of most interests in real property.

The Arizona Code does not contain any provision dealing with quasi-community property for purposes of probate.  For example, assume both husband and wife accumulates wealth while married and living in Illinois.  They then retire and move to Arizona where the husband dies and where his wealth is now located.  Because the property he and his wife accumulated while in Illinois was legally separate property, it retains that status when the husband and wife become domiciled in Arizona.  Assuming the property has not been commingled, the husband’s property is separate property, and the wife has no community property right in her deceased husband’s estate.

Spouse or Children and Unintentional Disinheritance

For decedents dying prior to January 1, 1995, if a testator executed a will and later married, the surviving spouse would receive an intestate share unless the will showed that the spouse’s omission was intentional, the will states that it is to be effective notwithstanding a subsequent marriage, or the testator made a transfer outside the will which can be shown to have been a substitute for a provision by will.

For decedents dying after December 31, 1994, the same rule applies with one significant difference.  The rule does not apply to any property devised to the testator’s child or children who are born prior to the testator’s marriage to the surviving spouse.  It’s very common for a person to leave everything to their child or children from a prior marriage and, for this reason, it is likely that the spouse will be disinherited.  In this situation, if a testator executes a will before marriage leaving all property to his or her child or children, subsequently marries and then dies, the surviving spouse takes a modified intestate share that excludes all property left to the testator’s descendants who are not descendants of the surviving spouse, which means the surviving spouse would take nothing.  If this is what the testator intended, the will should expressly state that intent.  Written evidence that one plans to provide for a spouse by way of life insurance or a living trust in lieu of provision by will, if this is the case, is also recommended.  Finally, where no provision is provided by will or otherwise, an ante-nuptial or post-nuptial agreement should be signed by which each spouse waives all rights in the estate of the other.

Pursuant to statute, children who are born or adopted after execution of a will and who are unintentionally omitted from the will are entitled to an intestate share as follows.  If, at the time the testator executed his or her will, he or she had no child living, an omitted child would receive a share in the estate equal in value to what the child would have received if the testator had died intestate, unless the will devised all or substantially all of the estate to the other parent of the omitted child, and that person survives the decedent.

In a case where the testator had one or more children living at the time the will was executed, and the will devised property or an interest in property to one or more of the then-living children, an omitted child is entitled to a share of the estate that the child would have received if the testator had included all omitted children with the children to whom devises were made under the will and had given an equal share of the estate to each child.

These rules do not apply where the testator’s will shows intent to exclude a child or children born after the execution of a will, or when the testator has provided for the after-born child or children by a transfer outside the will which is intended to be in lieu of a share in the estate.  If the testator fails to provide for a living child solely because the testator believed the child to be dead at the time the will was executed, the child is entitled to share in the estate as if the child were an after-born or after-adopted child.

Surviving Spouse and Claimed Allowances

Under Arizona law, if the decedent was domiciled in Arizona, the surviving spouse can claim a homestead allowance in the amount of $18,000.  If there is no surviving spouse, each minor child and each dependent child is entitled to an equal share of the $18,000.  The surviving spouse is also entitled to an exempt property allowance in the amount of $7,000.  If there is no surviving spouse, each minor child and each dependent child are entitled jointly to the $7,000.  Finally, a surviving spouse, as well as minor and dependent children, is entitled to a family allowance, which is a “reasonable allowance” for maintenance during the first twelve months of the administration of the estate, but it may not exceed $12,000.  Similar to owning a share in community property, this protects against disinheritance by the testator since they are rights conferred by statute.  In addition, because these allowances take precedence over creditors’ claims except expenses of administration, they can protect the family of the deceased against creditors.

Providing For Adult Supervision of Property Left to Children

An important part of preparing your will is arranging for responsible adult supervision of any property your minor children might own.  This can be accomplished in a number of ways including the creation of a child’s trust, a family pot trust, or utilization of the Arizona Uniform Transfers to Minors Act.

An advantage of creating a child’s trust is that it allows you the flexibility to choose the age at which each child receives outright the property you leave them.  The trust only becomes operational if you die before a child has reached the age at which you’ve specified for him or her to receive the trust property outright.  Until then, a trustee manages the trust property, spending it for the child’s “health, support, maintenance, and education.”  A different trustee can be named for each child’s trust.

Another option is to create what is called a family pot trust, in which all property left to your children goes into one trust.  One trustee is named to manage the property for the benefit of all the children, and is not required to spend the same amount for each child.

Arizona’s Uniform Transfers to Minors Act authorizes you to appoint an adult custodian to supervise property you leave to a minor.  You can name a custodian for as many children as you wish, and you can name different custodians for different children.  Pursuant to Arizona statute, the custodian may use as much of the custodial property as he or she considers advisable “for the use and benefit of the minor.”

 

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