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Estate Planning Attorneys, Tucson, Arizona
Wills
A
Will allows you to direct where your probate assets go at death.
Probate assets are assets in a decedent's sole name with no named
beneficiary. A person dying without a Will is said to die
intestate. If you are a resident of Arizona and you die
without a Will, Arizona statutory law determines how your property is
distributed. In general, this means that if you're married, your
spouse inherits your property--both your separate property and your one-half
interest in the community property. However, this does not mean that
probate won't be necessary to transfer such property.
If you have living children from a prior relationship,
these children will inherit your half of the community property. If
you're not married at the time of death, then your descendants will inherit
all of your property. If you have no descendants, then the general
line of succession in Arizona is: parents, siblings, nieces and
nephews, grandparents, aunts and uncles, and cousins, in that order.
But if you want to
have a say in where your property goes, a will does this and overrides the
dictates of the state.
The Features
of a Will
If you do execute a Will, then its provisions take effect
at death, and can be revoked or amended anytime during your life as long as
you have capacity. Here are some other features of a Will:
- Does not control what will happen if you become disabled, because it
only takes effect upon death.
- Does not avoid probate, but directs your Personal Representative as
to how to distribute your property.
- Does not affect property held: in joint tenancy with right of
survivorship; designated as payable on death; or which names a
beneficiary. Title to the property automatically goes to the surviving
joint tenant or named beneficiary.
- Can be used to name a guardian for minor children on the death of a
single parent or both parents.
- Can be used in conjunction with a living trust by
pouring over any assets that
were not placed into the trust during the lifetime of the Trustmaker.
(In fact, even if you use a living trust, you
will execute a pour-over Will to ensure all of your assets end up in the
trust.)
Choosing
between a Will and a living trust should
be done based on your individual circumstances. If you are
concerned about avoiding probate and want to provide instructions
for care during your incapacity, then a trust may be preferable to a
stand-alone Will. A trust also gives you the ability to
control property in multiple states.
Further, unlike a Will, a trust is
private, and not part of
a public record, as the court is not involved.
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"A will does not avoid
probate, but tells the probate court how you want your property
distributed."
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