Will Basics

March 2, 2014

A Last Will and Testament provides your instructions about your estate, both with respect to administration and distribution. Wills also often include instructions about minor children. If you have minor children you need a will, for sure. Even if you don’t have minor children, having a will should be on your bucket list.

A will addresses administration most directly by identifying a Personal Representative. (Personal Representative is the gender neutral substitute for executor/executrix, and became part of the proper terminology in Arizona when the state adopted the Uniform Probate Code 40 years ago.) The Personal Representative has as his or her tasks, in simple terms, gathering and distributing assets after paying creditors. There’s more to it than that, but those are the essential duties.

You design the distribution instructions. Often, working with clients, I get “is this OK?” or “is that right?” The answer, without exception, is “yes.” Subject only to certain statutory obligations to a surviving spouse and minor children—pretty small amounts of money, relative to most estates—you can do with your estate what you want. Charity? Great! An old friend? Sure! More to one child than another? Your choice!

Certain formalities are required with respect to wills:

  1. To make a will you must be 18 or older, and of sound mind. (Sound mind sounds simple. Rest assured that in too many cases, sound mind—and whether someone has unduly influenced the maker—gets debated plenty.)
  2. A will must be in writing. It should be witnessed by two people, and if it isn’t, it needs to be in the maker’s handwriting. (Hand-written wills are holographic wills. Not the way to go!)
  3. If the will is signed by two witnesses and the maker and witnesses sign before a Notary Public, the will is self-proven, saving lots of hassles and money. About the witnesses and the Notary Public:  none of them should have any stake in the estate, or be related to the maker, even though a witness can be a devisee under a will. (If someone witnesses a will being signed and is a devisee, that fact lends support to an undue influence claim. More in a future post.)
  4. Among legal documents, in most instances a copy functions as an adequate substitute for the original. With your will? Not so much, although on occasion a copy of a will has been admitted to probate. So, keep your will in a safe place, and make sure the right people know where to find it.

About those minor children? In a will the maker identifies a preferred guardian, and may identify an alternate. As noted in Guardians and Conservators/The Basics, in 663 Words, make sure about your choice(s), and have the appropriate discussions before you offer someone up for this very important job.

If you have questions about wills, please contact me or attend a Make a Will program. You can’t miss them this month, and I’ll be hosting two sessions late in the month. Stay tuned for details.


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