Copyright © 1995 State Bar of Arizona

What is a Will?
A Will is a written document which directs the deposition of a person's property after his or her death.

In Arizona, a person who is at least 18 years of age and of sound mind may make a Will. Except for holographic (handwritten) Wills, a Will must be signed by the maker and witnessed by at least two individuals who observe either the maker signing the Will, or hear the maker's acknowledgment of his signature or his acknowledgment of the Will.

A Will can also nominate a person to be guardian of a minor as well as conservator of a minor's estate.

What happens if there is no Will?
When a person dies without leaving a Will, the laws of Arizona provide for the deposition of property according to a specific formula. Without a Will, a person has no say in the deposition of his property.

May a Will be changed?
A Will can be changed or revoked anytime before death. Often simple changes are made by an amendment called a "Codicil."

Where there are no changes in circumstances such as marriage, divorce, birth or adoption of children, or changes in the nature or extent of property, the maker should consider a Codicil or a new Will.

What is Probate?
Probate is a legal proceeding by which a deceased person's property is distributed to heirs designated by law if he or she dies without a Will, or to certain beneficiaries designated by the deceased if he or she dies with a Will. Probate proceedings are governed by the law of the state where the deceased person maintained his or her legal residence at the time of his death, and by the probate laws of any other state where the property was left at the time of death.

The probate proceeding is usually handled by the Superior Court in the deceased's county of residence. It involves the appointment of a personal representative, who, after payment of the deceased's debts, taxes and administrative expenses, distributes the deceased's property to the heirs or beneficiaries entitled to it.

In Arizona, certain small estates may be handled by means of a special affidavit without a probate proceeding.

Does a Will increase probate expenses?
A Will should not increase probate expenses, and in fact may reduce expenses. For example, a Will can waive the requirement of a bond for the person representative of the estate, therefore saving the bond premium expense. Further, a well-drafted Will can sometimes reduce taxes and administrative expenses.

Does a person need a large estate to have a Will?
No. Any person who owns real or personal property has an estate regardless of the value. Often a person's estate will grow over the years without realizing it, through savings, inheritances, purchase of securities, and payments of mortgages along with appreciation in values.

Is a Will expensive?
If one considers the importance of a Will, the cost is small. Usually, a lawyer charges for time spent in consulting with the client in preparing the Will. Often the savings of the cost of the surety bond premium, required by law when not waived by a Will, will exceed the lawyer's fee.

Who will manage your estate?
When a person makes a Will, he or she may name an individual or a corporate fiduciary to manage the administration of the estate. In Arizona, this person is called a personal representative. If a person does not make a Will, the probate court will appoint someone to handle the affairs of the estate.

Does a Will avoid taxes?
Although anyone who has more than a small estate may have tax considerations, a properly drafted Will may reduce the amount of taxes which have to be paid. A lawyer skilled in this area can offer advice.

What about joint tenancy?
Real estate, bank accounts and other personal property may be held in joint tenancy with right of survivorship, so that upon the death of one owner the surviving owner receives title to the property. Such ownership may avoid probate, but also may create income tax, estate tax or gift tax problems. Further, one cannot avoid estate taxes by the use of joint tenancy. Joint tenancy may be advisable in some instances. A person should consult with an attorney for advice.

Is life insurance a substitute for a Will?
Life insurance is one kind of property a person may own, but is not a substitute for a Will. If the beneficiary of the policy is an individual, a Will has no effect on payment of the proceeds. If the beneficiary is the estate of the insured, the deposition of the property can be directed by the insured's Will. In planning an estate, a person should work together with his insurance counselor and his attorney.

What is a Trust?
A Trust is an arrangement whereby an individual or a bank trust department can manage or control a person's property for the benefit of another who may be unable or unwilling to handle these assets. A Trust may be set up in a Will or by an agreement made during a person's lifetime. Bank accounts which are titled "In Trust For" or "Payable On Death To" are not Trusts, but are contracts with the financial institution to pay that other person the funds in the account upon the owner's death.

Who should draft a Will?
Only a lawyer should draft a Will. It is best to have an expert professional who can advise the best alternatives with respect to an individual's estate plan.

Probate & Trust Law Section
State Bar of Arizona
4201 N. 24th Street, Suite 200
Phoenix, AZ 85016-6288

This pamphlet is published as a public service by the State Bar of Arizona. It is meant only to inform, and not to advise anyone on a specific legal problem. No one should attempt to apply or interpret any law without the advice of a licensed attorney. Laws and regulations change regularly. Please check with the Court or State Bar to make sure the information contained in this brochure is the most accurate available.