It can be scary to think of your own mortality. Still, by creating a last will and testament or a trust, you can ensure that others will carry out your wishes after you pass away. Even a simple will can provide peace of mind and help you and your loved ones to know that things will be in order.
At the law office of Mushkatel, Gobbato, & Kile, P.L.L.C., our Surprise, AZ will and trust lawyers can help you and your family to plan your estate and create solid, well-crafted documents that will stand the test of time and protect those you love. Contact us today to discuss the options available to you and learn more about how we can assist with your estate planning needs.
What Happens If You Die Without a Will in Surprise, AZ?
Arizona law sets out how a person’s estate will be distributed at death – if a person dies without a will. It is called the intestate succession statute. It basically establishes an order in which your loved ones will receive shares of your estate upon your death. For this reason, if you die without a will, your estate is described as “intestate.”
There’s an old expression that some estate planning attorneys use. It goes, “If you don’t write your will, the state has already written one for you.” The saying refers to the fact that Arizona’s law controls the distribution of your estate upon your death if you die without a will. The law may align perfectly with your wishes. However, it also may not. Do you want to take that risk? Is that really fair to your loved ones?
Should I Choose to Create a Will or Trust in Surprise, AZ?
A will is a set of instructions for the living. Once a person passes away, all of their wishes pass with that document. A court must do its best to honor the wishes of the person who made the will. Once all of the property is distributed under a will, no one will have ongoing control over how estate funds get invested or spent.
A trust, on the other hand, gives a person more control over the future of the funds in his or her estate. A trust serves as a contract between the decedent and the named trustee who is charged with managing the trust. The agreement requires the trustee to act in a certain way so as to preserve the trust and honor the decedent’s wishes.
What Is the Difference Between a Will and Trust?
As you decide whether to create a will or trust – or both – you should consider that a trust can do many things a will cannot. Here are a few of the important differences between a will and trust:
- A will can leave money to an heir. A trust will make ongoing payments to the heir, which may be contingent upon certain behavior.
- A will controls the distribution of property through a probate estate. Funds in a trust are not part of the probate estate.
- A will can control assets that pass publicly. Trust assets are privately held and do not generally become public as part of a court proceeding.
- A will has no impact on taxes. A trust can have powerful tax avoidance options for individuals with a high net worth.
An attorney from Mushkatel, Gobbato, & Kile, P.L.L.C. can discuss your estate planning goals and help you to create a will and/or trust that meets those goals.
How Do You Create a Will?
A will should provide clear instructions on how you would like the assets in your estate to be distributed after you pass away. You can make those instructions as general or as specific as you would wish. You could choose to leave your property in shares, or you could choose to list specific beneficiaries as recipients of specific types of property. For instance, you could leave a residence, vehicle or personal property such as art jewelry or heirlooms to one or more specific beneficiaries. You could also name a charity or other organization as a beneficiary.
The will must also name an “executor” or “personal representative.” This person will be the one who carries out your wishes that you state in the will. Most people will name a spouse or other family member to serve as a personal representative. However, you could also choose a friend or someone else that you trust. It will be important to choose someone whom you can trust and to provide the personal representative with clear instructions.
To properly execute your will, you will need to sign it in the presence of two witnesses. Those two witnesses must then sign the document within a reasonable period of time after you signed or acknowledge your will to them. You are not required to conduct this signing in front of a notary.
With that said, you can expedite the probate process for your will if you make it “self-proving.” You can do this by signing an affidavit in a notary’s presence in which you acknowledge that you knowingly signed the will. Your two witnesses will need to sign similar affidavits in front of a notary as well.
At Mushkatel, Gobbato, & Kile, P.L.L.C., our lawyers can draft a will that meets your needs and goals. We will also guide you through the steps of properly executing your will. Our goal will be to make the process as stress-free as possible for you and your family.
Can You Change or Revoke Your Will?
If you want to change any provision in your will – whether it is removing or changing beneficiaries or amending the shares or specific bequests – you can do so at any time. The two general ways to change your will are:
- Codicil – You could add an amendment to your will, which is called a codicil. Like the original will, the codicil should provide clear instructions, properly signed by you and two witnesses and, ideally, self-proving as well.
- Revocation – You could also choose to simply revoke your will and create a new one. You can revoke a will by destroying it, or you can make it clear in your new will that you have chosen to revoke the prior one.
In some circumstances, Arizona law automatically revokes certain provisions of a will. For instance, if your marriage ends in divorce or annulment, any bequest to your spouse or appointment of your spouse as a personal representative will be revoked as a matter of law unless you expressly state that you do not wish to revoke those provisions.
Can Trusts Be Specially Tailored to Meet Your Estate Planning Goals?
You could create a trust as an alternative to a will or in addition to a will. It will depend on your estate planning objectives. Your Surprise estate planning lawyer from Mushkatel, Gobbato, & Kile, P.L.L.C. will provide information and guidance to help you make a decision. We will also tailor any trust that you create so that it meets your unique goals.
If you choose to create a trust, it will involve transferring certain assets of your estate to the ownership of the trust. You will also need to name individuals or organizations who will benefit from the trust, or beneficiaries, and designate a trustee who will manage the trust’s assets. The trustee could be a family member, bank or other financial institution or anyone else whom you trust to manage the assets.
As with a will, you will need to provide clear instructions for the management of the trust. The trustee will have legal duty to follow those instructions. For instance, the terms of a trust may allow beneficiaries to gain access to the trust’s assets when a certain event occurs such as graduating from college or turning age 21.
Today, you can create many different types of trusts. However, the two main types of trusts that our attorneys at Mushkatel, Gobbato, & Kile, P.L.L.C. create on behalf of our clients in Surprise and surrounding areas are:
- Revocable – A trust which you can change or dissolve at any time
- Irrevocable – A trust which you cannot change in any way or dissolve.
While you are alive, you may want to name yourself or your spouse as the trustee of a revocable trust in order to directly manage the trust’s assets. If you name yourself as the trustee, you could appoint someone to serve as a successor trustee and assume management of the trust if you become incapacitated or die. Again, our goal at Mushkatel, Gobbato, & Kile, P.L.L.C. will be to customize any trust that you wish to create.
What Is a Beneficiary Deed?
You do not need to address all of your assets in a will or trust. Some assets, like real estate, can be addressed through a deed which gives an automatic interest in property to a designated beneficiary. For instance, if you name a close friend or loved one as your beneficiary under a deed or name the person as a joint tenant with the right of survivorship, your property can pass directly to that individual without ever passing through your will.
However, you must be careful with a beneficiary deed. Naming a beneficiary in a deed can have serious ramifications during your lifetime if you do not handle it properly. Some elderly residents of Surprise, Arizona have lost their homes while they were alive due to problems created by a beneficiary deed. For that reason, before you create one of these documents, you should first get knowledgeable and skilled advice from an experienced living will attorney.
What Is The Difference Between Guardianship and Conservatorship?
As we age, we can lose certain physical or mental functions. Medical conditions like a stroke or Alzheimer’s disease can lead to a loss of the ability to manage our own affairs. If a medical problem or cognitive decline leaves you unable to pay your bills, make healthcare decisions and manage daily your life, a court proceeding may be necessary to protect you.
If you give power of attorney to another, trusted individual, it can avoid the need for such court proceedings. Still, as with many estate planning decisions, many people put off designating powers of attorney for too long. If sufficient powers of attorney are not in place, or if powers of attorney are not enough to accomplish the tasks that must be performed on your behalf, someone may need to petition the court to be appointed as your guardian or conservator. A few important things to know about guardianships and conservatorships are:
Guardianships – In a guardianship, someone is granted the power to make individual decisions for another person. These decisions usually involve things like:
- Daily needs
- Household needs
- Healthcare decisions
- Getting medical records
- Filling prescriptions
- Talking to doctors.
Conservatorships – In a conservatorship, someone is given the power to make financial decisions for another individual such as:
- Opening and closing bank accounts
- Buying or selling real estate
- Handling business affairs
- Paying taxes
- Dealing with creditors
- Paying utility bills
- Managing rental properties.
Our law firm can discuss health care and/or financial powers of attorney with you. We can also provide guidance and representation if you seek a guardianship or conservatorship due to a decline in your loved one’s physical and/or mental health.
Visit our Wills and Trusts Law Offices in Surprise, AZ
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About the Author
Zachary Mushkatel discovered his affinity for the law by chance. As a political science major at the University of Arizona, he first aspired to become a professor. But an unexpected invitation to participate on a mock trial team at the university encouraged him to turn his competitive spirit and drive…
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