A proper estate plan includes a number of legal documents, but for most people, their will is the fundamental piece that lays the foundation for their estate plan. A formal last will and testament is usually the best format, but some states allow a few less-formal types of wills. Those whose estate plan includes a trust will also use a different type of will. Following is a list of the most common types of wills, and how they are recognized by the state of Arizona.
Last will and testament
A last will and testament is what most people are referring to when they generally reference a “will.” It’s also the best format to ensure a probate judge deems your will valid and authentic if anyone contests the will. This form of will should be typed, signed in the presence of a notary public, witnessed by at least two people who are not listed as beneficiaries in the will, and include the following:
- A statement that indicates you (the testator) are over the age of 18 and of sound mind
- The date, along with a statement that this is the most recent will (which invalidates any previously drafted wills)
- Your full legal name and date of birth
- An executor (or personal representative) to handle your estate
- A guardian for your minor children (if applicable)
- Instructions for your assets that are subject to probate
A “simple will” is a last will and testament where the testator’s estate is small, instructions for distributing their assets are straightforward, and there aren’t any complicated assets such as business interests or trusts. The document will need all of the features mentioned previously, but will probably be much shorter and simpler (hence the name) than a traditional last will and testament.
Also known as a trust-related will or a testamentary-trust will, this type of will is meant to supplement a trust. In this scenario, the trust is the primary estate plan document that handles the testator’s assets. The will’s primary purpose is to nominate an executor (who won’t have much to do, since most assets are inside the trust), select a guardian for minor children, and to direct the few assets that aren’t owned by the trust. Most of the time, a pour-over will doesn’t address any assets specifically, but instead offers general instruction that all residual assets not held in trust should be transferred to the beneficiaries.
Joint wills (also called mirroring wills) are meant for spouses and partners whose wills are nearly identical. When the first spouse dies, their assets transfer to the surviving spouse. Then, when the surviving spouse dies, the entire joint estate will pass to the beneficiaries (usually their children). Drafting joint wills tends to be more cost-effective than drafting two separate wills.
Keep in mind, however, that when the first spouse dies, the surviving spouse is under no obligation to retain their will. Once the deceased spouse’s estate is closed, the surviving spouse is free to draft a new will. While uncommon, this can be a potential problem for those in a second marriage who have kids from their first marriage, as the second spouse could easily disinherit the children from their spouse’s first marriage.
A holographic will is a handwritten will. Many states don’t recognize handwritten wills, but Arizona is uniquely lenient on the matter. According to ARS 14-2503, a holographic will is valid as long as the signature and handwritten will match the testator’s handwriting—even if the document isn’t signed by witnesses.
Nuncupative will (oral)
A nuncupative will is the legal name for an orally-communicated will. The state of Arizona does not recognize nuncupative wills—although, interestingly enough, the state does recognize oral trusts.
Don’t let the name fool you—a living will has nothing to do with your estate. A living will is another name for an advance healthcare directive (or shortened to an advance directive). Rather than dealing with your estate, a living will establishes a person’s end-of-life healthcare preferences. If you become incapacitated and are unable to communicate important healthcare decisions, your doctors can reference your advance healthcare directive to understand what types of treatment you would or would not approve.
A living will can broadly authorize any and all treatments to save and sustain your life, or they can be as specific as you’d like, naming treatments that you approve of and those which you wouldn’t choose for yourself. A few topics that are commonly addressed in this estate planning document include palliative care, resuscitation, (such as a do-not-resuscitate order), and artificial life support.
What happens if someone dies without a will?
If you die without a will, you die “intestate,” and your estate will be distributed to your heirs according to the state’s intestacy laws. In the state of Arizona, intestate succession largely hinges on whether or not you’re married, and if you have children. Regardless of your situation, you and your loved ones will not have a say in the matter.
Here is how intestate succession plays out in a few common scenarios:
- Single without children: the estate will pass to your parents and your siblings
- Single with children: the estate will be evenly distributed among your children
- Married without children: the estate will pass to your spouse
- Married with children: the estate will pass to your spouse
- Married with children from a former spouse: half of your estate will pass to your surviving spouse, and half will be evenly distributed among your children from the former marriage
- Unmarried partners: unfortunately, unmarried partners have no claim on the estate, and the entire estate will pass to the decedent’s parents and siblings
The commonality between these scenarios is that your spouse is always first, children are second, parents are third, and siblings are fourth. In rare cases where the decedent has none of the above, the estate will pass to their grandparents, or, if the grandparents are deceased, to any surviving extended family members (aunts, uncles, cousins, etc.). If the decedent has no surviving family members, the estate can be claimed by the state.
Do You Need Help with Probate Matters?
As you can see, AZ probate laws can be complex. It requires a number of steps and without the right approach, it’s easy to get lost in the details.
At JacksonWhite, we can make probate a clear, easy-to-understand process. If you’d like help with probate matters, call the talented team at JacksonWhite Law today.
We can help explain your legal options and direct you to the probate solution that works for you and your loved ones.