Wills (Last Will and Testament)

A Last Will and Testament is the way to designate the distribution of assets after we die. If no Will exists, assets are distributed in accordance with the Arizona Revised Statutes. However, a Will does not prevent probate on its own. Proper titling of assets and listing of beneficiaries is critical to avoiding court involvement upon your death.

Under A.R.S. §14-2101, if a deceased person was married, all of the assets go to the person's current spouse unless the person had children from outside the marriage. When there are children from outside the marriage, then without a Will, those children will get half of their natural parent's sole and separate property and all of their natural parent's half of the community property. Thus, everyone who has step-children should make sure that they and their spouse have a Will to clarify how their assets should be distributed.

If the deceased person was not married, then without a Will, the estate will have to be probated and the assets will go to the living children. If there are no children, then assets will go to the family members in the following order: parents; if no living parents, then to siblings; if no siblings, then to grandparents; and if no living grandparents, then to the grandparent's descendants (i.e., aunts and uncles or cousins). If no such relatives can be found, then the assets could go to the state.

Wills also allows us to distribute tangible personal property. The Arizona legislature has recognized that we continually buy and sell tangible personal property, like jewelry, cars, art or household effects. Therefore, under A.R.S. §14-2513, a handwritten list can be attached to the Will which designates who should receive certain tangible personal property. There is no limitation on how often the handwritten list can be changed. However, the Will must reference that the handwritten list should be followed.

For people with minor children, the Will provides a way to nominate who should be the guardian and the conservator of them. The "guardian" has custody of the child and protects the well-being of the child. The "conservator" protects the assets owned by the child. While the guardian and conservator can be the same person, sometimes the perfect guardian cannot be the perfect conservator. For example, if the guardian has children of her own, then being conservator could cause a conflict between what she wants to provide for her children and the assets that are supposed to be used only for your child.