Writing a Will is something everybody should do. With a Will, you can name a guardian for your minor children, decide who gets your assets, and appoint someone to sort out your estate. A properly drafted Will should help maintain family harmony, negate confusion and minimize any time your family has to spend in court. A Will certainly shouldn’t cause family conflict or confusion or require your family to spend thousands of dollars and hours in court just to determine your wishes. However, since you won’t be around to witness how your Will actually functions, you should take steps now to ensure that your Will does exactly what you want. Below are the 7 Secrets of a Successful Will:
1. Make sure your Will has been signed correctly.
While it may seem like common sense that you need to sign your Will, how it is signed and by whom can make a big difference. Unless the Will is in the testator’s handwriting (the testator is the person making the Will), the Will must be witnessed by two people. Witnessing a Will means watching the testator sign the Will and signing the Will as a witness. While a witness can be someone who is supposed to inherit under the Will, most attorneys agree that the best practice is for both witnesses to be disinterested. In addition to having two witnesses sign the Will, it is also a good idea to sign the Will in front of a notary. When a Will is notarized, Arizona courts will automatically accept the Will as authentic and allow the parties to proceed with a simplified informal probate. If the Will is not notarized, a witness to the Will must testify in court regarding the authenticity of the Will. As such, the best practice is to have the Will notarized. For more information about the requirements for Arizona Wills, please see my article For A Will to be Valid, What Does Arizona Law Require?
2. Explain decisions you made in your Will.
Sometimes a testator’s asset distribution plan does not sit well with the testator’s heirs. This can lead to family fighting, discontent and confusion. It can also lead to costly and time consuming court battles. While your Will is not the proper place to explain your decisions, that doesn’t mean you shouldn’t explain them at all. Often a testator will write a letter to his or her loved ones and keep the letter with the Will. The letter should explain why the testator made the decisions set forth in the Will, including why a gift was made to a charitable organization, or why one child’s share of the assets is larger or smaller than the other children’s shares. A letter can also help demonstrate that the testator was competent at the time the Will was made and evidence the testator’s intent to make the Will.
3. Pick the right personal representative.
In your Will, you need to name a personal representative. A personal representative (sometimes called an “executor” is responsible for wrapping up your estate. This task includes gathering your assets, giving notice to creditors, paying your creditors, filing your last tax return and distributing your assets as set forth in your Will. Given the importance of these tasks, picking the right personal representative is crucial. You want to pick someone who is responsible and organized, and who you trust to handle everything you worked for throughout your life. Depending on the size of your estate, it can be a big job. Make sure you pick someone who is capable of achieving your goals of preserving family harmony, negating confusion and minimizing any time your family has to spend in court.
4. Consider a “money manager” for assets left to minor children.
A large part of your reason for making is Will may be that you have minor children. You likely named a guardian for your minor children in your Will, but did you name someone to manage the assets left to the children? Since minor children (under the age of 18) cannot hold assets in their own name, someone must hold and manage the assets left to a child until the child reaches the age of 18. Sometimes is makes sense to name the child’s guardian as the money manager, but not always. For example, your sister might be great with kids, but is a train wreck when it comes to money. If that is the case, you should consider naming a conservator to manage the minor children’s assets. A conservator will collect and manage the assets belonging to the minor children. A conservator will also use those assets to pay for the minor children’s support, education and care. Once the child reaches the age of 18, the conservator will turn the assets over to the child. To ensure that you maximize the amount your child receives when he or she reaches 18, be sure to pick a conservator who has good money management skills, who can competently manage and even grow the child’s assets.
5. Create contingency plans.
So you’ve named a personal representative, guardian and possibly even a conservator in your Will. Have you thought about what might happen if anyone you named is not able or does not want to take the job? This is why it is important to create a contingency plan. At a minimum, you should name at least one alternate for every position. You may even want to consider naming a second alternate as well. Be sure to name people that you trust to handle your affairs as you would yourself. You also may want to name alternative beneficiaries for important items. Let’s say for example that you named your daughter to receive grandma’s engagement ring. However, if your daughter predeceases you, grandma’s engagement ring could end up with your daughter’s spouse or children. If that’s not what you want, consider putting some conditional language in your Will. For this example, you might want to say “I give grandma’s engagement ring to my daughter, but should she predecease me, I give grandma’s engagement ring to my son.”
6. Update your Will when necessary.
If you’re like a lot of people, you made a Will and now it’s sitting forgotten on a shelf or in a drawer gathering dust. Every few years you should take it out, blow the dust off and review it. Are the people you named as personal representative, guardian and conservator still living? Are they still able to perform the job you have given them? What about your assets? Do you still own everything you gave away? Have you acquired additional property that needs to be disposed of in your Will? Neglecting these types of issues can create enormous confusion and make probate and administering your estate much more difficult. The cost of revising your Will is significantly less than dealing with the issues an out of date Will may cause. For maximum potential for success, be sure to regularly update your Will!
7. Know what your state requires for a valid Will.
It’s hard to follow the rules if you don’t know them. In Arizona, the rules governing Wills are found in Title 14, Chapter 2 of the Arizona Revised Statutes. It is absolutely critical that you follow state law when writing your Will. First, if a Will isn’t valid, then your heirs must start from scratch and your property will be distributed pursuant to the state’s rules for people who die without Wills. Second, if there is any question about the validity of your Will, it will require time in court and expensive court and attorneys’ fees to sort it out. Third, you won’t be around to clarify anything you put in your Will. A properly drafted and executed Will that follows state requirements is hard to mistake for anything other than a Will.
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