Last Will and Testament
A Last Will and Testament is a legal document prepared during life that delineates several after death instructions for your heirs and loved ones. The main benefit of a Last Will and Testament is that it will give instructions as to how you want your assets distributed.
We generally use this document to also list a Personal Representative (Executor or Executrix), who will be charged with following the instructions in your Will, with making funeral arrangements, and with paying expenses and creditors.
We will also generally use this document to nominate any persons we would like to be the guardians of minor children should you pass away and have children under the age of eighteen.
There are many options available with your Last Will and Testament. These can be used as the focal point of your Estate Plan, though they may not allow for the same probate avoidance that can be achieved with trust plans.
Wills may also be used in tandem with a Trust-based estate plan. In this scenario, we would call the Will a Pour-Over Will, and the Will would direct that any property that was not funded to the trust be put in the trust when the Trustmaker passes away. Assets would then “pour-over” to the trust at death.
However, if we are having to use the will in this fashion, we are likely having to go to probate court.
When a Will is used as the focal point of an Estate Plan, it will usually come with a Personal Property Memorandum. This allows the creator of the Will to handwrite in directions for the Personal Representative to dispose of this type of property.
The best part of this is that if done correctly, you don’t have to have witnesses or a notary for this portion of the Will. You can fill this out at any time. Our client’s will use this Personal Property Memorandum to pass items of personal property, such as jewelry or family heirlooms that they specifically will want to see go to an individual.
A Last Will and Testament based plan is used in tandem with Beneficiary Designations. When using this type of plan, all assets must be accounted for with a Pay on Death, Transfer on Death, or Beneficiary designation. For example, depending on the value involved, a checking account may need a Pay on Death designation to avoid probate court when you pass away.
A Trust-based plan may be a better option depending on your specific wants, needs, and circumstances.
It is also important to not get a Living Will vs testament. A Living Will is a health care document and not a Last Will and Testament.
In summary, a LastWill and testament is only one part of a Complete Estate Plan. It can be used as the focal point along with beneficiary designations, or it can be used in tandem with a Trust based Estate Plan.
We generally use a Last Will and Testament to designate a Personal Representative to enact our instructions, pay expenses, and distribute our estate. We also use a will to designate a guardian for minor children, and to dictate where our assets go when we pass away.
Frequently asked questions about a Last Will and Testament
1) Does a Last Will and testament avoid probate?
A Will is a legal document that expresses your wishes to the probate court. A Last will and testament alone does not avoid probate. A Last will and testament together with beneficiary deeds as well as adding the correct nominations to all accounts may or may not avoid probate.
If you are concern about probate call our estate planning attorneys we will discuss the best way to achieve that. Sometimes a Living Trust is a better instrument to make sure you avoid probate process.
2) Do I still need Powers of Attorney if I have a Last Will and Testament?
Powers of Attorney are usually recommended even if you create a Last Will and Testament. A health care power of attorney, a financial power of attorney, as well as a Living Will will help to take care of your and your assets in case you become incapacitated during live.
Powers of Attorney are legal documents done to be used during life. They will expire when a person passes away. They will give you peace of mind and they will help the need of guardianships and conservatorships as well during life. That way your health and your assets will be taken care of.
3) Can I create a testamentary trust using a Will?
A testamentary trust is not a common estate planning strategy in Arizona. Arizona state laws for Trusts are very strong, because of that most people usually prefer to create a Revocable Living Trust during life. But the answer to the question is yes, a testamentary trust is usually created by a Last Will and Testament.
Your beneficiaries may benefit from a proper estate planning.
4) Do I need to see a notary public for my Will?
If you want a Last Will and testament to be self proving you also need to have two witnesses sign it in front of the notary public as well.
5) What is a testator?
The testator is the person that creates the Last Will and Testament. The testator is usually addressed that way after they passed away.
6) Do I need a Last Will and Testament if I have a living trust?
At our law firm we like that always create a Last Will and Testament even if you have a Living Trust done by us. We usually call that type of Will a Pour Over Will. Family members can use that Pour Over will later if anything is left out of trust to put it inside of a Living Trust. That will still require a court appearance but it is a much shorter process than probate.
The Pour Over Will may also address issues like your final wishes that are actually not part of your trust.
7) Which types of wills exist?
There are seven different types of Last Will and testament in Arizona. To understand them better check our blog article about the subject: What are the types of Wills in Arizona? (click here)
8) Does the surviving spouse gets everything if I pass away without a Last Will and Testament?
The shortest answer is: it depends. There are some family dynamics, like blended families or children from outside of the marriage, that may alter the distribution of assets. Some estate planning strategies, like a revocable living trust, may later that as well.
Only a Will Attorney in Arizona will be able to answer that questions after understanding your case.
Citadel Law Firm will be pleased to help you with your estate planning. We can help you with a Last Will and Testament, Health Care Power of Attorney as well as Financial Powers of Attorney. We offer you a free consultation to see if you have a case that our law firm can take.
Click in the link below to schedule your free consultation or call (480)565-8020.