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Last Will and Testament

Financial and legal experts all recommend basic estate planning for everyone, but there are many people who are unsure about how wills and other estate planning documents can help them.

Here are some common questions and answers that can give you basic information about what you need to know.

Why Do I Need a Will?

Great Question! Most people understand the necessity of having a last will. Even if you're young and just starting out, you have some assets, so it's important to have a last will. As you acquire more assets or start a family, the importance of having a will grows.

1. Yes, if you have minor children. Who will take care of your minor children and manage the property you leave. If you don't provide for a guardian and trustee of your property in a will, the court may appoint a guardian that you might not have chosen, Plus there is the expense of a court proceeding which comes out of your estate leaving less for the kids. Also, if you have real property and your kids receive a interest in it it, owning and managing the property can become complicated. This is made more difficult in Arizona because it is a community property state.

2. Yes, if you have no children. Do you know if you die without a will it is possible that your spouse might not receive all of your property. While that is okay if you have planned that, how many people are that specific in their plans. If you don't have a will that directs what happens to your property, your assets may not go to whom you want them to or might create joint ownership of property which is a problem in itself.

3. Yes, if you have a large family. Can you imagine what it would be like if you have a big family and because of a lack of planning, many of them become co-owners of your property. Could there be a better idea for chaos? While it is possible that all of the new owners will agree, experience shows that acrimony and disagreement is likely to create ill will and even litigation.

4. Yes, if disability or incompetency occurs. Most people think wills and estate planning are only for those with substantial assets. It is true that the more assets you have, the more planning is necessary but everyone needs to arrange their affairs so that if disability or incompetency occurs. If you are in an accident or be incapacitated by illness who will take care of your financial interests or make decisions regarding your health?

What happens you die without a last will in Arizona?

When a person passes away without a last will, the person's assets are probated or passed through the courts for distribution according to the laws of intestacy. In other words, the deceased person's assets will be distributed according to the laws of the state—not necessarily according to the deceased's wishes.

If you die without a will in Arizona, your assets will go to your closest relatives under state “intestate succession” laws. Here are some details about how intestate succession works in Arizona.

Married with No Will and no Children

In Arizona, if you are married and you die without a will, what your spouse gets depends in part on how the two of you owned your property — as separate property or community property. Generally, community property is property acquired while you were married, and separate property is property you acquired before marriage. There are a couple of big exceptions: Gifts and inheritances given to one spouse are separate property, even if acquired during marriage.

In Arizona, your surviving spouse will automatically inherit your half of the community property if you have no descendants or if you have descendants — children, grandchildren, or great grandchildren – resulting only from your relationship with your surviving spouse. If you have descendants from another relationship, your spouse will automatically inherit your half of the community property only if you hold that property as “community property with the right of survivorship.” Otherwise, your half of the community property will be distributed among your descendants.

If you have separate property (many spouses mix everything together and don't have any separate property) your spouse will inherit all or a portion of it. As with your community property, the size of your spouse's share of your separate property depends on whether or not you have living descendants — children, grandchildren, or great grandchildren — from a previous relationship. If you do, those descendants and your spouse will share your separate property.

Married with No Will and with Children

If you die without a will in Arizona, your children will receive an “intestate share” of your property. The size of each child's share depends on how many children you have and whether or not you are married.
For children to inherit from you under the laws of intestacy, the state of Arizona must consider them your children, legally. For many families, this is not a confusing issue. But it's not always clear.

What happens after someone who has a last will passes away?

The probate court disposes of the assets in accordance with the last will and the law.

Does a person have to have a minimum amount of assets to create a last will?

No—a person can create a last will to dispose of assets worth $10 or $10 million. Of course, the distribution of those assets can have tax implications. For that reason, it is important that you understand how inheritance will be taxed as you make your estate planning decisions. It is often wise to consult with estate planning professionals, especially for large or complicated estates.

What is the difference between a living will and a last will?

The basic difference is that a last will is used to dispose of assets after death. A living will can be used to provide health care instructions in advance, such as whether or not life support is desired.

What are the main benefits of a living trust vs a last will?

A last will's main benefit is its simplicity. Anyone can write a last will. The drawback is that your family members may have to wait months or even years until your property goes through the courts and is distributed.

A living trust, on the other hand, can be used to transfer property and assets to beneficiaries without going through the probate process. This can save years of time and thousands in fees. Also, it keeps your estate private, whereas a last will, once probated, will become public record.

People often use a last will and a living trust together. A last will can be used in conjunction with a living trust to name guardians for minors and express final wishes not otherwise captured in a living trust.

How do I decide what's best for me?

Wills do not have to be complicated and can be a simple legal document. They must be prepared properly however or they can be challenged. Whether or not a will is sufficient for your family depends on your own specific circumstances. We can help you decide what will work best for your objectives. Whatever you do, do not neglect this important area of your life.

We can assist you in the planning and preparation of your estate plan, including drafting of a Last Will and Testament, as well as joint or mirror wills for spouses. Also, we recommend that you create supporting documents that accompany your will, including healthcare proxies, living wills, Powers of Attorney, and other documents. Our estate planning services begin with a free half-hour consultation. Then we will suggest the work to be done, and quote a fixed price for attorney's fees and costs, and set a firm completion date.

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Poulos Law firm is committed to answering your questions about Estate Planning, Business Law, and Probate & Trust law issues in Arizona.

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