A will is a document which directs how a person's property is dealt with after their death. Also known as a “last will and testament,” it is one of the most important documents in estate planning. Unfortunately, it is also something that many people put off dealing with due to the sensitive subject matter.
Planning for what will happen after you pass away can be difficult for many people to face. However, it is important to consider what happens to your property without having an estate plan in place. Without a will, your property will be distributed according to state laws, without consideration for what you would have wanted for your friends, family and loved ones.
When someone dies without a will, they are considered to have died “intestate,” meaning their property will be distributed according to the state intestacy laws. This can get more complicated if you have property in multiple states, there are children from a previous marriage or relationship, or if the property is shared between multiple owners in family or business arrangements.
Depending on your surviving family members, your property may go to your children, spouse, grandchildren, or other relatives. If you die leaving behind children, but no spouse, then your children will inherit everything equally. If you have a spouse, and no children, or children only with your spouse, then your spouse will inherit everything. If you have a spouse as well as children with another person, your children and spouse will inherit half of your separate property, and your children will inherit half of the community property. Intestacy laws can get complicated very quickly.
Alternatively, if you die without family members, your property will go to the state. Even if you would have preferred the property go to a friend, church or other organization, without a will, the state intestacy laws control what happens to your money, land, home and other property.
Furthermore, not all property is distributed according to the state intestacy laws. For example, distribution of retirement benefits, such as a 401(k), life insurance proceeds, and property in a living trust may not go through intestate, and will pass to the named beneficiary.
An unplanned estate can also have the unfortunate effect of bringing out greed in some people. This all too often results in tension between family members, and they try and decide what the passing relative really wanted, and who they wanted to be their beneficiaries. A proper will and estate plan can save family relationships by making sure that distribution of property goes exactly according to the terms of the will.
Creation of a will can be done in a relatively short amount of time, and is the simplest way to make sure your wishes are carried out after you pass away. Through the will, you can specify who you leave your property to, including family, friends, church, school, or other organization. You can specify who you would like to take care of your children, and even your pets. You will also be able to name the person who will carry out the terms expressed in the will.
A decedent is the person who passed away, and is the subject of the will, also known as the Testator.
Beneficiaries are the individuals named in the will who are designated to receive property or other assets.
An executor is the person who is responsible for administering the estate according to the terms of the will. In Arizona, this person is called the Personal Representative.
The estate is the total of all of the deceased person’s property, including money and real property.
A guardian is someone who will be appointed to take care of the decedent’s minor children.
Probate is the legal process that occurs after someone passes away in dealing with the distribution of their assets. This may involve a probate court making sure the will is valid, assessing debts and taxes, and distributing property to the beneficiaries.
Some people may decide to prepare their own will. However, you may require more than simply naming the beneficiaries of all of your assets. What will happen if you leave a house to multiple beneficiaries? If you leave money or property to a child, how can you make sure it gets used the way you intended? What if you want to make changes to your will? An experienced Arizona estate planning attorney will be able to make sure your will is valid, and ensure all the terms and conditions of your property distribution will be carried out.
Probate is the legal process that the estate goes through after a person passes away. This includes “proving” the will, to make sure it is valid, assigning a personal representative, taking stock of the estate, liquidating liabilities, assessing debts and taxes, and distributing the assets of the estate to the beneficiaries. This process involves the court, and could take a few months, or where there are disputes about the validity of the will or the terms of the will, it could take much longer.
Because probate can take a while, and in some cases can complicate the transfer of assets, some people prefer to avoid probate. There are a number of ways to reduce probatable property, or avoid probate altogether. Not all property is subject to probate. Things like life insurance benefits, retirement benefits, or other assets that are payable on death will pass directly to the beneficiary, without going through probate. This can be extended to real property, bank accounts, or other assets that have a payable-on-death designation. Another useful instrument for avoiding probate can be through the use of a living trust.
At West, Longenbaugh and Zickerman, our estate planning attorneys are here to help individuals and families throughout Tucson achieve their long-term financial and legal goals. We will work with you and advise you on your options for disposition of real and personal property after death, and create the necessary legal documents including wills and trusts. Our team of lawyers are committed to addressing the individual needs of each of our clients and can assist you with all aspects of estate planning.