Wills & Trusts

Wills.  If a person dies without a valid will, Arizona law determines who inherits the estate.  If a person dies with a will, the will usually determines who gets the property of the person who died.  A will can also state who should take care of minor children or someone who is disabled.

A will written in another state, that is valid in that state, is usually valid in Arizona. A will that is in the handwriting of the person making the will, called a holographic will, is valid in Arizona if it was signed and dated by the person before death.

Once a will is written, the original should be kept in a safe place so it can be found when the person who wrote the will dies.  It is not recorded with the County Recorder.  The Court only accepts a will if a probate in court is required.

Trusts.  Trusts are entities that name a trustee to manage a person’s assets during his or her lifetime, and tells the trustee how to distribute those assets when the person dies.

What is a revocable or living trust? It is an estate-planning tool where a trustee, such as an individual or a bank, takes title to the assets of the original owner. The original owner can also be the only beneficiary during his or her life, and designate a successor trustee who will distribute the trust assets at death.



What are its advantages? Avoiding probate is the main advantage, a trust is a private document that does not go through the court.  The assets pass through the trust, not an estate.
In contrast to probating a will, property moving through a living trust can usually be distributed to the beneficiaries within a few weeks of the trust maker’s death.  Also, trustees can manage assets for the original owner’s benefit if he or she is incapacitated, avoiding the need for a court-appointed conservator.
 Setting up a trust can protect beneficiaries who are too young or unsuitable to receive all of their inheritance at once.  Finally, a trust is helpful if a person has real estate in more than one place.  Under a will or intestate succession, the property would need to be processed in each county where the property is located.  This may mean multiple probates.  In a trust, the trustee handles all real property regardless of location. 

What is a Pour-Over Will? A pour-over will transfers assets to your trust.  Why have a will that does nothing but transfer property to your trust?  For that matter, why do you need a will at all if you’re using a living trust to leave your property?   A pour-over will acts as a safety net to put items into your trust so that they can be handled as you have described in your trust.  It will take care of assets that, for whatever reason, were never transferred to the trust before your death.    

The main disadvantage to pour-over wills is that, like all wills, the property that passes through them must go through probate unless an exception applies allowing Small Estate Administration.  In Arizona, any real property worth  $100,000 or less, subtracting mortgages, or personal property worth less than $75,000, less liens and encumbrances, can be processed by affidavit, not requiring probate.  If the property is more than those amounts, the will must be probated and this keeps the living trust going months after death until eventually the assets are put into the trust.  The trustee of the trust will collect trust assets, including those transferred by the pour-over will, and distribute them to the trust beneficiaries.