Decedent’s Estates (Becker) – Spring 2022
The Power to Transmit Property at Death
I.
Freedom of Disposition
a. American law of succession, both probate and nonprobate, is organized around the principle of freedom
of disposition.
i. Freedom of disposition authorizes the testator to have control over their property. This concept is
designed to facilitate the transfer of property after death, not regulate it.
b. Dead Hand Control  unique in modern legal systems; embraced in American succession law. American
law allows property owners to exclude blood relations and subject dispositions to ongoing conditions.
II.
Restrictions and Limitations on the Freedom of Disposition
What restrictions can an individual put on transfers of property at death?
a. A complete/total restraint on a first marriage is not valid because it violates public policy (can’t say that
a person can never marry).
b. Restraint on second marriage is valid if placed on the estate by the deceased spouse. (when I die, my
wife cannot remarry or the trust foes to someone else). If the condition is not placed by one of the
spouses, then the provision is only valid if it is reasonable.
c. Partial restraint on marriage will be valid only if it is reasonable:
i. Must be definite (clear as to what the restriction is); and
ii. Devisee must have the ability to satisfy the condition (ex: Shapiro case – is it possible for Daniel
to marry a Jewish woman? How many Jewish women are around?)
d. If a provision affects a family relationship:
i. Cannot promote divorce:
1. I am leaving my daughter ¼ interest but only if she divorces her husband) = against
public policy
2. My daughter gets $100/month if she stays with her husband but $10,000/month if she
divorces him = unenforceable
ii. BUT, valid if you are protecting:
1. In the event my daughter divorces, I want to make sure she is taken care of, so she gets X
extra benefits from the trust = enforceable
e. Provisions encouraging criminal or unlawful acts are invalid (cannot leave estate on the condition that
the beneficiary votes in accordance with the testator’s political affiliation).
f. Provisions concerning religion are generally okay but cannot say someone has to believe in something
because it is too subjective.
g. Restraints on personal habits (e.g., drug habits) are generally enforceable (I’m leaving X to my son if he
quits smoking.
h. Education and occupation restraints are generally enforceable (I will leave X to my son if he becomes
(or doesn’t become) a doctor.
i. Destruction of property is generally seen as wasteful unless there is a justification for the destruction; if
there is a will that provides for destruction of animals or property, anyone has standing to object.
What restrictions can the government out on transfers of property at death?
a. Adult children: In general, no one has a right to receive an inheritance and there is no legal resource. A
testator is not required to leave anything to their adult children.
b. Spouse: Under Arizona law, a testator is required to leave his or her spouse $37,000 (in statutory
allowances).
c. Minor children: If not married, the $37,000 will be left to any minor children (in statutory allowances).
d. Tax: Under current law, the federal estate tax applies to estates that have a value of $11,580,000, paid
before any transfers are made. The first $5,490,000 of the fair market value of the estate is not subject to
tax. Above that, it is subject to 40% tax.
e. Creditors: Creditors get paid before ant depositions are made; testators may not leave their estate to their
children to the detriment of their creditors.
Constitutional Right
a. Hodel v. Irving: an escheatment provision that completely abrogates the right to devise property interests
constitutes a taking without compensation in violation of the Constitution. A decedent’s right to dispose
III.
IV.
Decedent’s Estates (Becker) – Spring 2022
of property after death is a Constitutional right; the state can limit the manner of disposition but may not
remove the ability to do so completely.
b. Note that constitutional protections only apply to the right to transfer at death, not a particular
beneficiary’s right to receive property from a decedent.
Posthumously Created Property Rights
a. Shaw Family Archives (Indiana): a property right not owned by the testator at the time of death may not
be devised by the will (e.g., right of publicity).
b. A.R.S. 14-2602 provides that a will may provide for a passage of all property that Testator owns at death
and all property acquired after death.
Basic Probate and Administration
I.
II.
Steps to Determine What is Includes in the Probate Estate
a. First, was the decedent married or single at the time of death?
i. If married, the property in the probate estate is one half of the community property and all of the
deceased spouse’s separate property.
1. Community property (A.R.S. 25-211): All property acquired by either husband or wife
during marriage (does not matter which spouse holds title). Does not include property
acquired by either spouse by gift, devise, or descent.
2. Separate property (A.R.S. 25-213): property owned by either spouse prior to the
marriage; property acquired by gift, devise, or descent, property acquired after filing for
dissolution of marriage if the dissolution does in fact occur, and any income or
appreciation of separate property.
ii. If single, the property in the probate estate includes all property titled in the decedent’s name,
excluding nonprobate property interests.
b. Second, determine which property is included in the probate estate and which property is nonprobate
property.
i. Probate property: any property that passes under a decedent’s will or by intestacy is probate
property.
ii. Nonprobate property any type of property that passes outside of probate by way of will
substitute. Nonprobate property interests include:
1. Property owned in joint tenancy with right of survivorship. Decedent owns property
with another; decedent’s part goes to the other person at death or decedent.
2. Community property with right of survivorship vests in surviving spouse by operation
of law.
3. Life insurance passes to beneficiary according to the terms of the policy
4. Payment on death contracts (e.g., retirement accounts, 401Ks, mutual funds) payable to
beneficiary on death of owner/participant.
5. Multiparty bank account automatically goes to surviving party/parties outside of the
will.
6. Trusts
7. Beneficiary deeds
Probate Terminology
c. Personal representative: the person who takes care of the decedent’s affairs; a fiduciary who collects and
inventories the property of the decedent, manages and protects the property during the administration of
the estate, processes the claims of creditors and files federal and state tax returns, and distributes the
property to those entitled to it.
d. Testate: when a person dies with a last will and testament.
e. Devisee: those who take property from a decedent’s will.
f. Executor: personal representative named in the decedent’s will to carry out the terms of the will and
administer the probate estate (only deals with devised assets whereas personal representative deals with
everything; but pretty much the same thing, AZ calls them personal representatives)
g. Administrator: personal representative named by the court when the will does not name an executor, the
named executor is unable/unwilling to serve, or the decedent dies intestate (usually selected from a
statutory list of persons given preference in this order: spouse, children, parents, siblings, creditors).
III.
Decedent’s Estates (Becker) – Spring 2022
h. Devise: property received under a will
i. Intestate decedent: decedent who dies without a will
j. Heir: those designated by the applicable statute to take decedent’s intestate property (you have no heirs
until your dead)
k. Decent: property received as an heir
Probate Administration
a. Three Core Functions of Probate Law
i. Gives evidence of title to the new owners;
ii. Protects creditors by giving a way to collect Decedent’s debts; and
iii. Distributes Decedent’s property to those intended after creditors are paid.
b. Choice of Law
i. Law of domicile at death governs personal property.
ii. Law of state where real property located governs real property.
c. Opening Probate in Arizona
i. Probate cannot be initiated until 120 hours after death of decedent.
ii. If there is property in the probate estate, a personal representative must be appointed.
1. PR is entitled to reasonable compensation (usually determined by time expended).
2. PR is required to post a bond unless waived by the will.
3. PR is required to take an online class.
iii. Before initiating probate, look for a will:
1. Decedent’s home or office;
2. Safety deposit box;
3. With attorney that drafted documents;
4. With clerk of court (no longer allowed in AZ).
Best practice: keep will in fire-proof safe, unlocked
iv. Initiate Probate using the Code Manual from the State Bar of Arizona.
v. Assuming there is a will, first determine that the will is valid.
vi. Two types of Probate:
1. Formal probate (supervised)  initiated by someone with an interest in the estate; notice
is given to interested parties before actions are taken; requires hearings in front of a
probate judge
2. Information probate (unsupervised)  usually initiated by someone with an interest in
the estate; personal representative takes action first, then notifies interested parties
second; filings are made with probate registrar (less expensive, less court involvement)
d. Nominating a Personal Representative
i. Definition: Fiduciary who collects and inventories Decedent’s property, manages and protects the
property during administration, processes claims of creditors and files tax returns, distributes the
property (person nominated in a will does not have any legal authority until they are appointed by
the court).
ii. Criteria: honesty, common sense and good judgment, financially responsible, investment
experience, aware of legal issues and willing to follow the steps, fiduciary personality, longevity,
proximity, no directions, prior approval.
iii. Include a first, second, and third choice
iv. Letters testamentary: document that proves the representative’s authority to act in matters of the
estate
e. Duties of a Personal Representative
i. A personal representative is entitled to reasonably compensation for his/her services.
ii. Representative must take possession of the property (change locks, security codes, etc.)
iii. Notify insurance companies of decedent’s death
iv. Prepare an inventory of the assets that make up the estate; 90 days after appointment to provide
the first inventory
v. Inventory must be the fair market value of the probate assets (may hire appraisers to evaluate the
worth of the property)
vi. Give notice to creditors, pay taxes, make an accounting for heirs/devisees
vii. If real property is involved, prepare a deed and present that to heirs/devisees
Decedent’s Estates (Becker) – Spring 2022
viii. Pay statutory allowances (protected from creditors; purpose is to provide a minimum amount to
spouse and minor dependent children; applies to decedents domiciled in Arizona; even if the will
leaves nothing to the wife, she can still get statutory allowances)
[If not enough money, order goes as follows]
1. Homestead allowance (A.R.S. 14-2402): $18,000 payable to surviving spouse, and if
there is no surviving spouse, payable to minor dependent children. Paid only after
expenses of administration.
2. Family allowance (A.R.S. 14-2404): $12,000 ($1,000/month for 12 months) payable to
surviving spouse then to minor and dependent children absent surviving spouse.
3. Exempt property allowance (A.R.S. 14-2403): $7,000 payable to surviving spouse, if
none, minor dependent children. Payable in kind first (jewelry, clothing, auto, etc.). If
deficiency, payable in other assets.
4. Total Statutory Allowance Amount = $37,000
[Note: There is a dollar to dollar offset with these statutory allowances. E.g., if a surviving spouse
receives a life insurance policy of $50,000, she will not get anything from statutory allowances
because she has already received more than $37,000. But if she received $10,000 from life
insurance, her statutory allowances would be $27,000.]
f. Creditors
i. Attorneys are paid out of the estate first, then creditors are paid.
ii. Creditors are paid before heirs and devisees.
iii. The general rule is that creditors have two years to present a claim to the estate (A.R.S. 143803). This period can be cut short by actual notice to known creditors and publication for
unknown creditors. A.R.S. 14-3801 gives those creditors 4 months to bring a claim.
iv. Creditors can be negotiated with if the estate is insolvent. If there is not enough to go around, the
expensive of administration come first (attorney and personal representative fees. If the estate is
insolvent, there is no responsibility for family members of the deceased, unless there was a
cosigning (A.R.S. 14-3805).
g. Taxes
i. Income tax  the final income tax return for decedent must be filed by the personal
representative. The estate is responsible for its income taxes (tax year beings on January first and
ends on the date of death)
ii. Estate tax  tax on the transfer of property after death; generally, applies when a person’s assets
exceed $11.4 million at the time of death. The estate tax rate can be up to 40%.
h. Distribution of Property
i. Accounting  accounting and appraisal of the property and then show what has happened to the
property, receipts, and disbursement
ii. Distribution  property is distributed in kind (as is) to the extent possible and avoid liquidation.
A document must be prepared illustrating distribution. When accounting is complete, it is
explained to heirs or devisees, there is a receipt and release of liability signed by the interested
parties.
i. Closing of the Estate
i. Formal  file a petition (tells the court that the estate administration is complete)
ii. Informally  file a closing statement with the court (pretty much the same thing)
j. Priority of Distribution
i. Administrative expenses
ii. Statutory allowances
iii. Creditors
iv. Taxes
v. Distributions to heirs/devisees
Professional Responsibility
I.
Duties to Intended Beneficiaries
II.
III.
Decedent’s Estates (Becker) – Spring 2022
a. Simpson v. Calivas: An attorney who drafts a testator’s will owes a duty of reasonable care to the
intended beneficiaries. Privity is not necessary, especially when the risk to persons not in privity is
forgeable. A beneficiary states a cause of action simply by pleading sufficient facts to establish that an
attorney has negligently failed to execute testator’s intent.
i. But under Arizona Law…
1. A.R.S. 14-5652: Puts the privity defense back into the legal malpractice situation, absent
an express agreement. Providing legal services, by itself, does not establish a duty in
contract or tort or otherwise to a third party.
Joint Representation
a. A v. B: When estate planning for a couple, married or unmarried, always draft a client engagement letter
and agreement concerning confidentiality and the clients. Generally, there are two approaches:
i. Problematic  keep information disclosed by client 1 and client 2 confidential
ii. Unproblematic  no secrets between the attorney and clients; information from a third party is
disclosed to both clients
b. Client engagement letters should address the following:
i. Scope of representation
ii. Description of the services provided by the attorney
iii. Any potential conflicts of interest
iv. Whether clients have duties to each other or third parties
v. Attorneys’ fees
Bad Faith
a. In re Estate of Fogelman: There is a fiduciary duty of fair dealing for all parties which include all the
parties that have an interest in the estate, including heirs, devisees, and creditors. The personal
representative has a fiduciary duty to beneficiaries but should inform the beneficiaries that they should
obtain separate counsel.
Intestacy
I.
The Basics
a. What is included in the probate estate?
i. If decedent was married, the property in the probate estate is one half of the community property
and all of the deceased spouse’s separate property.
1. Valid marriage in AZ:
 License is issued
 Marriage is solemnized
 Ceremony performed and witnessed
 Parties have capacity
[Note: common-law marriage is not recognized in Arizona.]
ii. If decedent was single, the property in the probate estate includes all property titled in the
decedent’s name, excluding nonprobate property interests.
b. Statutory Allowances
i. Statutory allowances are given priority over creditors. Fees for the administration of the estate
will be paid first. A testator cannot opt-out of a statutory allowance by will (but may be waiver).
Applies to all decedents in the state of Arizona; does not matter where the decedent’s surviving
spouse or minor/dependent children live.
1. Homestead allowance (A.R.S. 14-2402): $18,000 payable to surviving spouse, and if
there is no surviving spouse, payable to minor dependent children. Paid only after
expenses of administration.
2. Family allowance (A.R.S. 14-2404): $12,000 ($1,000/month for 12 months) payable to
surviving spouse then to minor and dependent children absent surviving spouse.
3. Exempt property allowance (A.R.S. 14-2403): $7,000 payable to surviving spouse, if
none, minor dependent children. Payable in kind first (jewelry, clothing, auto, etc.). If
deficiency, payable in other assets.
TOTAL AMOUNT REQUIRED BY STATUTORY ALLOWANCES: $37,000
Decedent’s Estates (Becker) – Spring 2022
[Note: There is a dollar to dollar offset with these statutory allowances. E.g., if a surviving
spouse receives a life insurance policy of $50,000, she will not get anything from statutory
allowances because she has already received more than $37,000. But if she received $10,000
from life insurance, her statutory allowances would be $27,000.]
c. When does property pass by intestacy?
i. When decedent dies without a will the probate estate passes by intestacy.
ii. When decedent dies with a will that makes only a partial devise of the probate estate, the
remainder of the probate estate passes by intestacy.
iii. When decedent dies with a will stipulating the property is to pass to decedent’s heirs at large
by using the state intestacy statute, the probate estate passes by intestacy.
d. What law applies?
i. Real property  wherever real property is located, that state’s laws determine who takes that
property by intestacy
ii. Personal property  the laws of where the decedent is domiciled at time of death govern the
disposition of his personal property
II.
III.
Arizona Intestacy Statutes
a. A.R.S. 14-2101 (Intestate estate; modification by will): Any part of a decedent’s estate that is not
effectively disposed of by will, passes by intestate succession. However, a decedent can expressly
exclude a person or class.
i. A.R.S. 14-2101(b) Negative Wills. When a person has a will but some of their property still
passes under intestacy (because the will doesn’t dispose of it all), the will can exclude someone
that would otherwise be an heir.
b. A.R.S. 14-2102 (Intestate share of surviving spouse):
i. If the decedent has no descendants, everything goes to the surviving spouse. If the decedent has
descendants, and they are also descendants of the surviving spouse, then everything goes to the
surviving spouse.
ii. If the decedent has one or more descendants that are not descendants of the surviving spouse,
then the surviving spouse receives one half of decedent’s separate property and the remainder of
the probate estate (including Decedent’s ½ of the community property) is split evenly between
the Decedent’s descendants (those with surviving spouse and without).
c. A.R.S. 14-2103 (Heirs other than surviving spouse; share in estate)
i. Any part of the estate not passing through the surviving spouse or if there is no surviving spouse
passes in this order to those who survive decedent:
1. Decedent’s descendants by representation;
2. If no surviving descendant, to decedent’s parents equally if both survive or to surviving
parent;
3. If no parents, to brothers/sisters or nieces/nephews (i.e., descendants of parents by
representation)
4. If no siblings, ½ to paternal grandparents or any of their descendants by representation
and ½ to maternal grandparents or any of their descendants by representation.
5. If there is no surviving grandparent or descendant of a grandparent on either the paternal
or the maternal side, the entire estate passes to the decedent’s relatives on the other side
in the same manner as the half.
d. A.R.S. 14-2104 (Survivorship)
i. Heirs are determined after surviving 120 hours; and
ii. Clear and convincing evidence of survivorship.
e. A.R.S. 14-2105 (No Takers  State)
i. If no one is qualified to claim the estate, the intestate estate passes to the State.
ii. However, the 120-hour rule does not apply, if it would lead to a taking by the State.
Representation Methods
Decedent’s Estates (Becker) – Spring 2022
a. Representation generally:
i. All states provide that if one of several children dies before Decedent and leaves descendants, that
child’s descendants will represent the dead child and divide the child’s share of the Decedent’s
estate among themselves.
ii. If the dead child has a spouse, the spouse does not take. Only the dead child’s descendants take.
b. Systems of Representation
i. English Per Stirpes (By the Stocks)
1. Only applied if specified by decedent’s will or trust.
2. Start at generation nearest to decedent (doesn’t matter if everyone is dead).
3. One share for each living member of that generation, one share for each deceased that
has living descendants (if deceased has no living descendants, ignore them).
4. Deceased members share go down to their descendants.
ii. Modern (American) Per Stirpes
1. Only applied if specified by decedent’s will or trust.
2. Start at generation nearest to decedent that has one or more surviving members.
3. Create one share for each living member of that generation, and one share for each
deceased of that generation that has left surviving descendants.
4. The deceased share is taken by their descendants using English Per Stirpes distribution.
iii. By Representation (Per Capita)
1. Used when a person dies intestate.
2. Start at the generation where there are any surviving members.
3. Give evenly among that generation, even allocating a share to a deceased (assuming they
have living descendants).
4. Deceased shares are combined back up.
5. Divide into equal shares and distribute among descendants of the deceased shares.
IV.
Transfers to Children
a. Adoption under A.R.S. 14-2114(B):
i. Severance Adoption: Rights of both natural parents are terminated, and the child is adopted by a
third party. The adopted child can no longer inherit through natural parent or their natural parents’
ancestors.
1. Example: Dani is considered a child of G and Bryan and is no longer considered a child
of her natural parents and cannot inherit from them.
ii. Family Realignment Adoption: Adoption by the spouse of a natural parent (child’s stepparent).
The adopted child can inherit through both natural parents’ ancestors as well as the adopted
parents’ ancestors. Children may have three lines of inheritance.
1. Example: If Max is adopted by Marc, he is allowed to inherit from BOTH G and Bryan,
AND Marc.
b. Adult Adoption
i. A.R.S. 14-8101
1. Adult at least 18 but not over 21 = no relationship required. Adult to be adopted must
give consent.
2. Adult over 21 = requires relationship. Must be stepchild, niece, nephew, cousin, or
grandchild of adopting parent.
c. Equitable/Virtual Adoption
i. A.R.S. 14-2114(c)
1. Legal technicality with the adoption so the adoption is considered invalid.
2. Express or implied contract to adopt which is unperformed.
ii. Equitable or virtual adoption is only applied for the child to inherit form the parents, it does not
allow parent to take as heirs to the virtually adopted child’s estate.
d. Posthumous Children (Children in Gestation)
Decedent’s Estates (Becker) – Spring 2022
i. A.R.S. 14-2108: If a child is in gestation at the time of the decedent’s death, he/she is considered
to be alive at the time of the death of the decedent if the child is born and survives for 120 hours.
ii. Gillette and Eddie Case: In Arizona, children conceived after decedent’s death are not
considered heirs for the purpose of intestacy.
e. Half Blood
i. A.R.S. 14-2107: Relatives of the half-blood (e.g., stepsiblings) take as the whole.
V.
Transfer Between Parent and Child
a. Loan: A loan is usually evidenced by some kind of IOU or promissory note or something that evidences
that terms of the loan. Loans that are owed to the decedent when decedent dies are charged against the
intestate share of the debtor. If the child that owes the loan predeceases the decedent, the debt goes away
(not charged against the debtor’s descendants). (A.R.S. 14-2110)
b. Gift: Not taken into consideration in the allocation of the probate estate.
c. Advancement: If the gift looks like it was given/received in anticipation of the inheritance, it can be held
against the inheritance. In Arizona, there has to be a writing in order to show the gift was intended to be
an advancement and can be made by the heir or the decedent. If the heir pre-deceases the decedent the
advancement is not taken into account unless there is an expressed provision in the will to count it against
the heir’s descendants. (A.R.S. 14-2109)
i. If a gift is an advancement, it is accounted for in distributing Decedent’s estate by bringing it into
a hotchpot.
1. Example: O dies, leaving three kids: A, B, C. During O’s life, she gave A an
advancement of $10,000. O’s estate is worth $50,000.
 Hotchpot = $50,000 + A’s $10,000 advancement
 Totally $60,000
 $60,000 is divided equally among the three children. A, B, and C get $20,000
each.
 A’s advancement is taken out against her intestate share.
 A receives $10,000, and B and C each receive $20,000.
 Totaling the original $50,000 estate.
ii. If there is not enough in the probate estate: If the advancement is too large, then the person
receiving the advancement will not participate in the division of the probate estate.
1. Example: O has given A $40,000 during her life and O’s estate is $50,000. A would not
have to give back any money because it is clear that O wanted her to have this money.
Instead, A will stay out of the hotchpot and the $50,000 will be divided between B and C.
d. Guardianship: The Court will give preference to guardian designated in a will. If the child is at least 14,
they can have a say in their preference. If no guardian is noted in the will, the Court will appoint one. A
child cannot own property until the age of 18 so if the property is left to a child, usually a conservatorship
is created.
Bars to Succession
I.
The Slayer Statute (A.R.S. 14-2803)
a. If a person feloniously and intentionally kills someone they are not entitled to their intestate or testate
share of descendant’s property.
b. If the wrongdoer does not have mental capacity, the slayer statute will not apply.
c. If the children of the slayer were to take as a result of the slaying, likely in Arizona the descendants
would not be punished by the slayer’s actions and would receive their share.
d. Severs interests in property held in joint tenancy with right of survivorship, or community property
with right of survivorship, transforming the interests of decedent and killer into tenancies in common
(slayer holds their share of the property but cannot gain decedent’s share).
e. A criminal conviction is conclusive. Absent that, the Court determines guilt by the preponderance of the
evidence (i.e., a criminal conviction is not required for the slayer statute to apply).
f.
II.
Decedent’s Estates (Becker) – Spring 2022
Catchall provision that states the wrongdoer should be treated as if they disclaimed their interest,
meaning they are treated as though they have predeceased the decedent. The wrongdoer cannot profit
from any wrongdoing.
Duty to Vulnerable Adult (A.R.S. 46-456)
a. Financial exportation of a vulnerable adult can be a forfeiture of inheritance.
b. It requires a position of trust and confidence to a vulnerable adult.
III.
Disclaimer of Property Interests (A.R.S. 14-10001-10018)
a. Individuals can disclaim a gift. When they do so, the disclaimant is treated as predeceased and the gift
will pass the next descendent (per representation does not apply; just drop the portion of the estate down
w/o redistributing it).
i. Individuals may do this to keep their property from creditors but may not do so to avoid a federal
tax lien.
b. Six Requirements for Disclaimer under Arizona Law
i. Disclaimer must be in writing;
ii. Disclaimer must describe the property being disclaimed;
iii. Declaimer must be a declaration;
iv. The declaration must be signed by the disclaimant;
v. There can be no acceptance of the benefits;
vi. The declaration must be delivered to the personal representative or trustee.
IV.
Termination of Marriage (A.R.S. 14-2804)
a. Upon termination of marriage, once the order is issued the decedent’s provisions favoring his former
spouse are revoked by operation of law. A former spouse is essentially barred from receiving anything
from the deceased former spouse if the marriage was dissolved after the making of a will.
i. Revokes any revocable disposition created by law, will, trust, or other governing instrument
unless governing instrument says otherwise.
ii. Termination of marriage severs joint tenancy or community property interest with right of
survivorship and transfers the interest into tenancies in common.
iii. Provisions revoked by this section are revived if the couple remarries.
Execution of Wills
I.
II.
III.
Functions of Formalities
If a will is not executed with all of the required formalities, the will is considered void. The formalities serve
the following functions:
a. Evidentiary function: Requirements that will be in writing, that testator signs his will, and that witnesses
sign serve as evidence of the testator’s intentions. Enables the court to decide whether a will is authentic
without Testator’s testimony. Provides reliable evidence of testamentary intent and terms of the will.
b. Channeling function: Provides the courts with uniformity and organization to determine whether a will
is valid.
c. Cautionary function: Impress upon the Testator the seriousness of the testament and assures the court
that the statements of the Testator were deliberately intended to effectuate a transfer.
d. Protective function: Use of witnesses; Testator is protected from imposition and undue influence of third
parties.
Who May Make a Will (A.R.S. 14-2501)
a. A person who is 18 years or older; and
b. Is of sound mind.
Attested Wills (Prepared by an attorney; must be attested)
Decedent’s Estates (Becker) – Spring 2022
a. Requirements (A.R.S. 14-2502)
i. In writing;
ii. Signed by the Testator, or by proxy signature;
1. Proxy signature: the testator’s name may be signed by another individual in the
testator’s conscious presence and by the testator’s direction
Note: The testator only has to have the intent to sign it and make a mark, does not have to be their
full legal name.
iii. A will must be signed by at least 2 competent witnesses, each of whom sign within a reasonable
time;
1. Witness may not be an interested party (a devisee or related by blood, marriage, or
adoption). If interested witness, will is invalid.
2. Reasonable time: look at facts and circumstances (a day is usually reasonable).
iv. Witness must witness one of 3 things:
1. Testator signing his or her will;
2. Testator acknowledging that the document is his or her will; or
3. Testator acknowledging that it is his or her signature;
Note: the witnesses do not have to witness the same thing and they do not have to be present at
the same time.
b. Explanation of 3 Core Formalities
i. In Writing
1. Something on a computer will not be viewed as “in writing”—it must be printed out.
2. Video wills are not valid (even if transcribed into a narrative).
3. It can be in any language so long as it is in writing.
ii. Signed by Testator (or Proxy)
1. Required in all states to distinguish the final from drafts.
2. Full signature is preferred but it can be signed with initials, a mark, name, abbreviation,
or some other way that indicates Testator intended it to be their signature.
3. If testator is unable to sign, a rubber stamp or electronic signature works.
a. Godfrey’s Will: He made a cursive signature on a computer and printed it out.
Witnesses signed by hand. This is a valid will.
b. “Father” as signature  valid so long as he intended this writing to be his
signature; even if he always signed letters “dad.”
4. Proxy signature allowed: 1) in testator’s name by some other individual, 2) by testator’s
direction, and 3) testator’s conscious presence
a. Conscious presence: Done within the range of any of Testator’s senses and
within his physical proximity; Testator must be able to use his or her sense of
hearing/sight to understand what is going on with respect to the execution of the
will.
Proxy Example:
/s/ LMP
By Jennifer Phillips
At LMP’s direction and in her conscious presence
/s/ Jennifer Phillips
iii. Signed by 2 Witnesses
1. Witnesses do not have to be present at same time, do not have to sign in presence of
testator, and do not have to sign in presence of each other.
2. Sign within a “reasonable time” can even be after Testator’s death (Jung).
3. Witnesses don’t have to witness the same thing, and don’t have to be present to witness at
the same time.
Decedent’s Estates (Becker) – Spring 2022
4. Witness may not be an interested party (a devisee or related by blood, marriage, or
adoption). If a witness is interested, the will is invalid.
5. A.R.S. 14-2505: A person who is generally competent to be a witness may act as witness
to a will.
6. Notary counts as one witness.
c. Choice of Law (A.R.S. 14-2506)
i. Arizona has a broad choice of law statute. Even if a will does not satisfy 14-2502 or 14-2503, a
will may still be valid under Arizona law if it satisfies the requirements of the law:
1. In the place where the will was executed
2. In the place where the testator was domiciled at the time the will was executed
3. In the place of testator’s abode at the time of execute
4. In the place of the testator’s nationality at the time of execution
5. In the place where testator was domiciled at the time of death
6. In the place of testator’s abode at the time of death
7. In the place of testator’s nationality at the time of death
d. Substantial Compliance Doctrine
i. If a document substantially complied with the applicable Wills Act requirements, courts would
allow the document to be probated as a will if there was clear and convincing evidence the
document was intended to be the testator’s last will and testament.
ii. Not really used anymore but may be able to argue it in Arizona by citing to other jurisdictions.
e. Harmless Error
i. Statutory provision that allows a party to show by clear and convincing evidence of testator’s
intent to create a will. The document still has to be in writing. The signature may be excusable but
is the hardest requirement to do away with. The witness signatures are more common reason for
non-compliance to be harmless error.
ii. Not recognized in Arizona but the recognized in other states—argue that another state’s law
applies under Arizona’s Choice of Law provision.
IV.
Holographic Wills (Made by the Testator; do not have to be attested but material provisions must be in the
handwriting of the Testator) A.R.S. 14-2503
a. Requirements
i. Signature and material provisions must be in the Testator’s handwriting (no proxy)
1. “Material provisions” are usually the amount and devisee; disposition of property and
recipient of property; must express testamentary intent and describe the disposition of
property at death
2. Signature can appear anywhere on the document in Arizona; Courts are generous as to
what constitutes a signature
ii. No witnesses needed (but if it has signatures, also considered an attested will).
iii. Testator must be at least 18 and of sound mind
iv. Only completed when Testator dies (as opposed to attested which are completed at execution) so
long as the Testator has signed it.
v. A.R.S. 2502(B) allows for a preprinted will form as acceptable holographic will as long as it is
signed by the Testator and the Testator has filled in the blanks (material terms) in his
handwriting!! Typing is not okay.
1. (allows for extrinsic evidence of testator’s intent)
vi. AZ does not require that the holographic will be dated.
vii. If testator has a holographic will, that holographic will can be added to and subtracted from at any
time once signed.
1. You do not need to re-execute a holographic will every time you make changes to it
because it only becomes effective upon death of the Testator.
b. Conditional Holographic Will
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i. When a will is written to become operative if death arises from a particular event or in a specified
time frame.
ii. Most courts will presume that the language of a condition is not meant to be a condition but
instead it is a statement of the inducement for making a will, unless otherwise specified in the
document.
iii. Example: Testator says I am dying of cancer and leave everything to my son. Testator dies in car
accident. Likely probated even though she didn’t die how she thought, because she was still
thinking about the possibility of death when she wrote it.
V.
VI.
Codicil
a. A codicil is a (an amendment to a) will but has to be satisfied with the same requirements as a will.
b. If an individual has an attested will, there can be a holographic codicil to that attested will (sometimes
handwriting by the testator on the original will, depends on if the language expresses testamentary intent
and is signed by the testator).
c. Handwriting on an attested will may become a codicil. As long as it is signed by the testator, the codicil
becomes a will. The testator must change more than just the name of the beneficiary or amount being
disposed.
Revocation of Wills (A.R.S. 14-2507)
a. Two Ways to Revoke a Will (in part or in whole)
i. By subsequent writing executed with Will Act formalities; or
1. Express  “I make this my will and revoke all prior wills and codicils.”
2. Implied  If prior will in whole or in part is inconsistent with other will and the Testator
intended the subsequent will to replace a prior will in whole or in part.
ii. By a physical act such as destroying, obliterating, or burning the will.
b. Two Methods of Revocation by Writing
i. By executing a subsequent will that revokes the previous will or part expressly.
1. Exordium clause: identifies the testator and has the testamentary intent, then says “I
hereby revoke all prior wills and codicils.”
ii. By executing a subsequent will that revokes the previous will or part by inconsistency.
1. A.R.S. 14-2507(B): If subsequent will does not expressly revoke a previous will, the
execution of the new will wholly revokes the old will by inconsistency if Testator
intended the new will to replace, rather than supplement, the previous will.
2. A.R.S. 14-2507(C): Testator is presumed to have intended a subsequent will to replace
rather than supplement if the new will makes a complete disposition of Testator’s estate.
If this presumption is not rebutted by clear and convincing evidence, the previous will is
revoked.
a. I.e., when will 1 and will 2 both make complete dispositions of the estate and will
2 says nothing about will 1, there is a presumption that will 2 revoked will 1 by
inconsistency and only will 2 is effective; burden of proof is on the party arguing
that will 1 has not been completely revoked.
3. A.R.S. 14-2507(D): Testator is presumed to have intended the new will to supplement
rather than replace if the new will does not make a complete disposition of Testator’s
estate. If this presumption arises and is not rebutted by clear and convincing evidence, the
new will revokes the old will only to the extent the new will is inconsistent with the old
will, and each will is fully operative on Testator’s death to the extent they are not
inconsistent.
a. I.e., when will 1 makes a compete disposition and will 2 makes a partial
disposition, the testator is presumed to have intended a subsequent will (codicil)
to supplement the will 1. If the presumption is not rebutted by clear and
convincing evidence, the subsequent codicil revoked the previous will only to the
c.
d.
e.
f.
g.
Decedent’s Estates (Becker) – Spring 2022
extent that they are inconsistent; burden of proof is on party arguing that will 1
is completely revoked by will 2.
Revoking Wills by Physical/Revocatory Acts
i. Physical/Revocatory Acts include includes burning, tearing, canceling, obliterating or destroying
the will or any part of it.
1. A burning, tearing or canceling is a revocatory act on the will whether or not the burn,
tear or cancellation touched any of the words on the will.
2. If on a will someone is named and given a specific devise and the name has a penciled
line through it, this is a physical act and the presumption of partial revocation applies.
ii. Requirements:
1. Testator must have capacity;
2. Testator must have intent to revoke his will;
3. Must be a revocatory/physical act;
4. All three must exist at the same time.
iii. Proxy Revocation: Third party performing the revocatory action on the will by the testator’s (1)
direction and (2) in the presence of the testator.
Revocation of Codicil
i. A revocation of a codicil is not a revocation of the first will.
ii. If there is a revocation of the original will, it is considered to revoke all subsequent codicils to the
will.
Wills, Codicil, and Inconsistency Example
i. In 2007, Testator executes a will that gives all her property to A. In 2012, Testator executes a will
that gives her diamond ring to B and her car to C.
1. In 2013, Testator dies. Even if the 2012 will makes no reference to the 2007 will, the
2012 will is treated as a codicil and both are entitled to probate. B gets the diamond ring,
C gets the Car, and A gets all the rest (remainder) of the property.
2. In 2012, Testator destroys the 2012 codicil with the intention of revoking it. Testator later
dies. The 2007 will is admitted to probate. Revocation of a codicil does not revoke the
will. The codicil was not for the entire probate estate.
3. Testator destroys the 2007 will with the intention of revoking it. Neither can be admitted
to probate. The physical revocation of the will revokes all of the codicils too.
Dependent Relative Revocation
i. If a testator undertakes to revoke his will because of a mistaken assumption of law or fact, the
revocation is ineffective if the testator would not have revoked the will but for that mistaken
belief.
ii. If the testator would not have taken action if they knew that it was not legally valid, the court will
consider that subsequent action not to have happened (e.g., a revocation dependent upon a codicil
being valid and the codicil is not valid).
iii. Example:
1. Revocation will not be recognized in certain situations:
a. Ex: rob crosses out that I get 50K and writes 75K instead
i. The crossing out is a physical revocatory act and has life but the new $$
amount does not, so I would get nothing
ii. In these situations the court would likely apply dependent relative
revocation because he intended to give me something. So, the court
would pretend like the edits on the will didn’t occur.
iii. If the amount is decreasing, the court probably isn’t going to apply
dependent relative revocation unless the decrease is nominal
Revival Statute – Revoking a Subsequent Will
i. When Will #2 wholly revoked a previous will:
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1. If a subsequent instrument which revoked the entirety of the first will is destroyed, the
first will is revived ONLY IF it can be shown that it was the testator’s intent.
a. Burden of proof is on the person seeking revival.
ii. When Will #2 is a codicil that partially revoked a previous will:
1. If there was a subsequent codicil that was revoked, it is PRESUMED that the intent was
to revive the revoked portion of the first will unless it is evident from the circumstances
or testator’s declarations that the testator did not intend that part to be revived.
a. Burden of proof is on those seeking non-revival.
iii. When there are 3 wills:
1. The first will is only revived to the extent shown by the subsequent will.
Example: In 2013, Testator dies. Testator has one heir: H. Testator’s safety deposit box contains three
documents, all duly signed and witnessed:
1. A will executed in 2003 devising all of Testator’s property to A.
2. A will executed in 2010 devising all of Testator’s property to B.
3. A document executed in 2011 reading: “I hereby revoke my 2010 will.”
 Under these facts, the property will pass by intestacy. In order to revive will #1, there would have to be
something in the 2011 document that says the testator wanted Will #1 to be valid.
h. Revocation by Operation of Law
[Note: provisions of the will are revoked but the will itself is not revoked].
i. Premarital Wills (ARS 14-2301): A testator is single, devises his estate to charity. He later
marries, and then dies. The statute presumes that the testator would want to provide for his spouse
and creates a share. The will is still valid, but a share of the will is created for the benefit of the
surviving spouse. If it appears that marriage was contemplated but intentionally left a future
potential spouse out, then we won’t create a share for the new spouse.
ii. Termination of Marriage (A.R.S. 14-2804): Provisions of a will that devise property to a
former spouse are revoked by operation of law upon divorce.
iii. Omitted Children (A.R.S. 14-2302): If a testator devises property to two of his children and a
third child is born later but the will remains unchanged, the third child will take by operation of
law.
iv. Substitute Gifts (A.R.S. 12-2603): If testator devises property to a friend and that friend
predeceases the testator, the devise is taken away by operation of law. However, substitute gifts
may be made if certain deceased devisees leave surviving dependents to take.
v. Slayer Statute (A.R.S. 12-2803): If the devisee is engaged in misconduct against the testator, the
devise fails by operation of law. See also A.R.S. 46-456 Vulnerable Adult.
vi. Change of Circumstances (A.R.S. 14-2508): A devise is not revoked by operation of law if the
testator’s feelings towards a person have simply changed or an otherwise change in
circumstances.
1. Example: Testator has $200,000. Testator intends for half to go to her two children and
the other half to her spouse. Devise says “$50,000 to each child and the rest to spouse.”
Testator intended for children and spouse to get equal amounts. Testator wins the lottery
and then dies.
a. Children receive their specific devise of $50,000 each and then the rest goes to
the spouse.
2. Example: Two people who are not married each execute a separate will leaving
everything to the other person. They break up.
a. If one dies, that provision will not be revoked unless there is specific language in
the will (e.g., “unless I break up with this person”)
vii. Ademption by Extinction: If specifically devised property is no longer in the possession of the
testator at the time of death, that devise is ineffective.
VII.
Lost or Missing Wills (A.R.S. 14-3415)
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a. If an original will that was last seen in the possession of the testator cannot be found after the testator's
death, the testator is presumed to have destroyed the will with the intention of revoking it. This
presumption may be rebutted by a preponderance of the evidence. If this presumption arises and is not
rebutted the will is revoked.
b. If a will is found to be valid and unrevoked and the original will is not available:
i. Its contents can be proved by a copy of the will and the testimony of at least one credible witness
that the copy is a true copy of the original. It is not necessary for this person to be an attesting
witness to the will.
ii. Its contents can be proved only by clear and convincing evidence. For this purpose it is not
necessary for a witness to be an attesting witness to the will. On a finding of clear and convincing
evidence of the contents of such a will, the court, by order, shall set forth the contents of the will
in reasonable detail.
Components of a Will
I.
Integration
a. All papers that are present at the time of execution and are intended to be part of the will are treated as
part of the will.
i. Internal Integration: Papers that are in existence at the time testator executed the will and that
the testator intended to be part of the will (specific pages that make up the will).
1. In re Estate of Rigsby: Court does not allow the second page of a holographic will into
probate. The pages were folded together but not attached to each other. Both were in
decedent’s handwriting and have the same date at the top. One page is signed at the
bottom, the second page is initialed but not signed. The second page is not numbered and
does not refer to the first page in any way.
ii. External Integration: Determining which documents make up the testator’s estate plan.
Generally, these documents will be wills, codicils, or anything incorporated by reference
(documents that make up the testator’s will).
b. It’s good practice to…
i. Have the testator initial each page, though not required;
ii. Have pages run from one page to another so sentences do not end at the bottom of one page,
should have a continuation;
iii. Have page numbers on the will;
iv. Use the same font and the same paper;
v. Use blue ink for signatures so an original is obvious.
[But note: none of the above practices are required]
II.
Republication by Codicil
a. A validly executed will is treated as re-executed as of the date of the codicil. The doctrine should be
applied only if updating the will carries out the testator’s intent and the document being republished
once had testamentary life (revives a document and gives testamentary life).
i. Republished by the date of the codicil !!!
1. This could result in a previous omitted child not being omitted
ii. Example: Will #2 says, “I hereby revoke all prior wills and codicils” then testator creates another
codicil that says, “I hereby republish my previous will.” Will #1 will be revived and Will #2 will
be revoked.
1. Republication by Codicil causes Will #1 to become valid and have life as of the date of
the Codicil, thereby eliminating Will #2.
III.
Incorporation by Reference (A.R.S. 14-1510)
a. A testator may incorporate a written document into the testator’s will by reference if the following
requirements are met:
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i. The document exists at the time the testator executes the will;
ii. The will’s language manifests the testator’s intent to incorporate this document;
iii. The will’s language describes the document with enough specificity to allow its identification.
b. If the document is incorporated by reference into the will, it cannot be subsequently changed. It is frozen
in time as of the date of the will.
i. Clark v. Greenhalge: Although the document in question was not in existence at the time of the
execution of the original will, there were subsequent codicils that republished the will and the
document was in existence at that time.
IV.
Reference to a Separate List (A.R.S. 14-2513)
a. A separate list describing personal property can be done at any time, so long as it is:
i. Signed by the testator or in the testator’s handwriting;
ii. The will refers to a tangible personal property list;
iii. Cannot dispose of money—only tangible personal property (no limit as to value in Arizona);
iv. Must describe the items with reasonably certainty (best practice = pictures of property).
b. The writing may be: (1) referred to as one to be in existence at the time of the testator’s death (2) prepared
before or after the execution of the will (3) altered by the testator after its preparation (4) a writing that
has no significance apart from its effect on the dispositions made by the will.
V.
Acts of Independent Significance (A.R.S. 14-2512)
a. Allows admission of extrinsic evidence to identify property or recipients if related to acts of independent
significance.
i. Example: “I devise my automobile to my son.” At the time the will was written, Testator drove a
Lexis. When Testator died, she was driving a Tesla.
1. The son takes Tesla, the car at time of death (not time of will execution).
ii. Example: “I devise my contents to my daughter.”
1. Daughter gets what the contents are at time of death (not time of will execution).
a. Contents are tangible property.
b. Stock certificates are not tangible property.
c. Automobiles are part of “contents” if garage is attached to the house (they are not
part of contents if the garage is separate from the house).
d. Cash is included in contents.
VI.
Contracts to Make a Will
a. Statute of Frauds (A.R.S. 44-101): Only requires a writing for the devise of property, however, A.R.S.
14-2514 requires more. Apply the law of wills and the law of contracts to determine whether or not there
has been a breach of that contract.
b. Contracts Regarding Wills (A.R.S. 14-2514)
i. A person may enter into a contract to make a will or devise or not to revoke a will or devise or to
die intestate only by (only need one of three):
1. Provisions of a will that state the material provisions of the contract;
2. An express reference in a will to a contract and extrinsic evidence proving the terms of
the contract; or
3. A writing signed by the decedent evidencing the contract.
ii. Most common examples are pre-nups and divorce agreements.
iii. Breach of contract does NOT invalidate the will but may give rise to a cause of action / remedy
for breach.
iv. The execution of a joint will or mutual wills does NOT create the presumption of a contract not to
revoke.
VII.
Precatory Language
Decedent’s Estates (Becker) – Spring 2022
a. The use of precatory language causes the devise to fail because it does not have legal effect.
i. I wish for $15,000 to go to my housekeeper.
ii. I suggest…
iii. I recommend…
iv. It would be nice…
Wills: Capacity and Contests
I.
II.
III.
Questions to Set Aside a Will
a. Does the person have testamentary capacity?
b. Is the person suffering from an insane delusion?
c. Was the will the product of undue influence?
d. Was the will the product of duress or fraud?
Testamentary Capacity
a. Capacity levels: to enter into contract is high, give gift is high, capacity to marry is low, testamentary
intent is in the middle.
i. A.R.S. 14-2501: A person who is 18 or older and who is of sound mind may make a will. If the
Testator lacks mental capacity at the time of signing, the entire will in invalid.
b. Sound Mind = Mental Capacity
i. In Arizona, testator must be capable of knowing and understanding four things (must have all or
else no testamentary capacity):
1. Nature and extent of his property;
2. The natural objects of his or her bounty (usually heirs at law);
3. The disposition that he or she is making of that property; and must be capable of
4. Relating these elements to on another with an informed desire regarding the disposition
of property.
c. Actual Knowledge Not Required
i. It is the ability to know, not actual knowledge, that is required for testamentary capacity. A
perfect memory is not necessary. Testamentary capacity is looked at when the will is executed.
Testator doesn’t have to understand the meaning of every (legal) term used in the will. A
guardian or conservator being appointed does not automatically mean the testator does not have
testamentary capacity.
d. Case Law
i. In re Wrights Estate: testamentary capacity cannot be destroyed by showing a few isolated acts,
foibles, idiosyncrasies, moral or mental irregularities or departures form the normal unless they
directly bear upon and have influence over the testamentary capacity.
ii. Wilson v. Lane: the law does not withhold from the aged, feeble, weak-minded, or capricious the
right to make a will, provided that such person has a decided rational desire as to the disposition
of his property.
e. Burden of Proof  Burden is on the contestant to show by preponderance of the evidence that the testator
lacked testamentary capacity (A.R.S. 14-2712(D)). When a will enters probate it is presumed the testator
had capacity.
Insane Delusions
a. Definition: An extravagant belief to which a person adheres against evidence, argument, and reason.
Belief in facts that do not exist and which no rational person would believe to exists.
i. Two Types of Insane Delusions
1. Belief that natural objects of bounty (heirs) are exhibiting hostile behavior toward
testator;
2. Belief that natural objects of bounty (heirs) are engaging in misconduct.
b. Contestant claiming insane delusion must prove four elements:
Decedent’s Estates (Becker) – Spring 2022
i. Mistaken belief as to the existence of a fact (fact is broadly defined; includes not merely actual
occurrences, but conditions, natural laws, etc.);
ii. Mistaken belief effects the will (must induce the testator to make a will or a provision in it);
iii. Mistaken belief is not based upon any evidence, or any evidence that would lead a rational person
to come to the same conclusion; and
iv. Mistaken belief is not correctable by evidence (cannot be dissuaded from their belief).
c. But note:
i. Eccentricities or idiosyncrasies are not insane delusions. Insane delusions need to be separated
from ill will, prejudices, hatreds, etc.
1. Breeden v. Stone: testator had testamentary capacity even though there was evidence of
alcohol and cocaine; testator was suffering from insane delusions, but the court decided
that the delusions did not affect the will
2. Killen: insane delusion when testator believed her caretakers were trying to poison her
ii. If a delusion only affects part of the will, that part is stricken, and the rest will stand.
iii. If a will is invalid due to insane delusions, Testator may be deemed to have died intestate.
d. Lucid Intervals
i. A lucid interval is a pause on the insane delusion. If will is executed during a lucid interval, will
is valid.
IV.
Undue Influence
a. Situation in which the Will is no longer the product of the Testator; it is the product of the person who
is allegedly exercising the undue influence. Person, through his power over the mind of the Testator,
makes the Testator’s desires conform to his own so that the will does not conform to the desires of the
Testators.
b. Eight Factors to Consider Whether Undue Influence Exists (do not need all eight)
i. Fraudulent Representations
1. Did the person make any fraudulent representations to induce the testator in making the
will?
ii. Hasty Execution
1. Situations where the will was quickly prepared and executed after testator expressed a
desire to change his or her will
iii. Secrecy in the Execution
1. Did the testator tell others about the existence of the will? Did they use a new attorney
(when they had a history with another)?
iv. Involvement in the Procurement
1. Did the person participate in the procurement of the new will? Did they arrange for the
services of the new attorney? Pay for the attorney? Transport the person to the
preparation meeting?
v. Inconsistency
1. is the will consistent with prior wills or an existing estate plan?
vi. Unnatural or unjust gift
1. Subjective Test  Are the will provisions reasonable or unnatural in light of the
testator’s view towards family or charity? Is this a will that we would expect from this
testator?
vii. Susceptibility to influence
1. Is testator physically or mentally dependent on another person? Is the testator using
medication, drugs, alcohol? Recent deaths of people close to testator? Testator have
history of being susceptible to influence?
viii. Confidential Relationship
1. Fiduciary: client/attorney, agent/principal
2. Reliance: special trust and confidence (financial advisors, doctors, spiritual advisors)
3. Dominant/subservient: hired caregivers, friends, and neighbors
Decedent’s Estates (Becker) – Spring 2022
c. Three Elements to Find Undue Influence
i. A.R.S. 14-2712: It is presumed that a will is the product of undue influence if:
1. A person who has a confidential relationship with the testator;
2. Was active in procuring the will’s creation and execution; and
3. Is a principal beneficiary.
ii. Burden of Proof  Proponent of the will proves validity. Burden shifts to contestant to prove
undue influence existed. If these 3 exist, burden shifts back to proponent (person benefitting) to
prove by preponderance of the evidence that this was fairly and voluntarily executed.
1. Practice Tip  when asserting undue influence, assert vulnerable adult (A.R.S. 46-456)
as well. They both deal with susceptible relationship, but we want to allege vulnerable
adult because you can get treble damages.
d. No Contest Clauses
i. A.R.S. 14-2517: A provision in a will purporting to penalize an interested person for contesting
the will or instituting other proceedings or actions relating to the estate is unenforceable if
probable cause exists for the contest, proceedings, or actions. Probable cause exists if the
contestant seeks legal advice from an attorney and the attorney opines there is a cause of action.
V.
Fraud and Duress
a. Duress: A donative transfer is procured by duress if the wrongdoer threatened to perform or did perform
a wrongful act that coerced the donor into making a donative transfer that the donor would not
otherwise have made.
i. Latham v. Father Divine: Testator wants to change her will (current beneficiary is the cult); they
murder testator before she can. The court decided that duress was a valid claim for a will dispute.
The court could enforce a constructive trust if it was shown that there was duress in the creation
of the will or in the prevention of changing the will.
b. Fraud
i. Two Types of Fraud
1. Fraud in the Inducement: A misrepresentation causes testator to either execute, revoke,
refrain from executing or revoking, or include particular provisions in the wrongdoer’s
favor.
2. Fraud in the Execution: A person intentionally misrepresents the character or contents of
the instrument signed by the testator, which does not in fact carry out the testator’s intent
(person is misled concerning contents of document).
ii. Five Elements  A donative transfer is procured by fraud if the wrongdoer:
1. Knowingly or recklessly;
2. Made a false representation;
3. To the donor;
4. About a material fact;
5. That was intended to and did lead the donor to make a donative transfer that the donor
would not have otherwise made.
iii. Equitable Remedy  Constructive Trust
1. If the entire will is a product of fraud, it is set aside. If a portion of the will is product of
fraud, the portion is set aside, and the rest of the will survives. If the testator did not
intend the results of the will due to lack of knowledge, the court may set aside the will.
iv. Statute of Limitations (A.R.S. 14-1106)
1. Any proceeding must be commenced within 2 years after the discovery of the fraud, but
no proceeding may be brought against one not a perpetrator for the fraud later than 5
years after the time of commission of the fraud.
c. Tortious Interference with an Expectancy
Decedent’s Estates (Becker) – Spring 2022
i. Restatement recognizes intentional interference with an expected inheritance or gift as a valid
cause of action. Plaintiff must prove the interference involved tortious conduct, which under the
cases includes undue influence, duress, or fraud.
ii. Four Elements (Schilling v. Herrera):
1. Existence of an expectancy;
2. Intentional interference with the expectancy through tortious conduct;
3. Causation; and
4. Damages.
Note: breach of duty is not necessary to prove the claim.
iii. No specific case on point in Arizona but Professor thinks Arizona would recognize.
Wills: Mistaken or Ambiguous Language
I.
Maxims of Construction
a. The fact that the testator executed a will, especially if it includes a residuary clause, demonstrates
testator’s intent to note die intestate.
b. If several provisions of a will conflict, the provision nearest the end of the will controls.
c. A will is construed as a whole, and not from its isolated parts.
d. If a will is subject to two constructions and no evidence of preferring one or the other, the construction
that treats individuals who are equally related to the testator in the most similar manner is preferred.
e. A statement in a will explaining the testator’s reason for making the will is merely a statement of
inducement, and does not make the will contingent or conditional upon that event happening (the fact that
a condition or statements not fulfilled does not invalidate a will).
f. Legal terms in a will are given their specialized meaning, unless there is evidence that the testator used it
in a special context.
g. Nonlegal terms are given their plain and ordinary meanings.
II.
Mistaken or Ambiguous Language in Wills
a. Latent Ambiguity: manifests itself only when the terms of a will are applied to the facts (e.g., descriptions
that fit more than one person, or descriptions that nothing fit).
b. Patent Ambiguity: evident from the face of a will (e.g., the inconsistency between two hundred thousand
dollars and $25,000).
III.
Traditional Rules
a. Plain Meaning Rule: Extrinsic evidence (e.g., attorney’s notes) may not be admitted to resolve patent
ambiguities, but extrinsic evidence is always admissible as to the testator’s intent, and is admissible to
determine if the testator was of sound mind, free from undue influence, duress, and the like. Evidence of
the surrounding circumstances is always admissible.
b. No Reformation Rule: Courts may not reform a will to correct a mistaken term to reflect what the testator
intended the will to say (whether they are omissions or inconsistencies).
IV.
Modern Approach
a. U.P.C. 2-805: Court may reform the terms, even if unambiguous, to conform the terms to Testator’s
intention if proved by clear and convincing evidence what Testator’s intention was and that the terms of
the governing instrument were affected by mistake, whether in expression or inducement.
[Not expressly adopted by AZ yet, but Professor says could probably be used in AZ]
i. If, after examining the surrounding circumstances at the time of the will’s execution an ambiguity
or inconsistency persists, we may resort to extrinsic evidence and the rules of will construction.
ii. The surrounding circumstances should be examined first and direct evidence of testator’s
intention should be considered only if the ambiguity or contradiction persists.
iii. Extrinsic evidence is to be used to determine what the testator meant by the words used, not to
determine an intent that cannot be found in the words used in the instrument.
b. In re Estate of Duke: Court abandons the notions of plain meaning and no reformation. The court allows
extrinsic evidence, citing the UPC. In cases where clear and convincing evidence establishes both a
mistake in drafting of the will and testator’s actual and specific intent at the time the will was drafted, it is
Decedent’s Estates (Becker) – Spring 2022
plain that denying reformation would defeat the testator’s intent and result in unjust enrichment of
unintended beneficiaries. Two safeguards: (1) must be clear and convincing evidence of the mistake; and
(2) examine testator’s intent only at the time the will was drafted.
c. Clear and Convincing Evidence to Reform Terms
i. Requires qualitative and quantitative standards.
ii. Requires evidence be found credible.
iii. Facts to which witnesses testify must be distinctly remembered.
iv. The testimony must be precise and explicit.
v. The witnesses must be lacking in confusion as to the facts at issue.
vi. Evidence must be of such weight that it produces in the mind of trier of fact, a firm belief or
conviction without hesitancy as to the truth of the allegations sought to be established.
 This level of evidence is high, testimony from attorneys (notes and affidavits) will be most important
and rise to the level of clear and convincing.
Wills: Death of Devisee Before Death of Testator
I.
Lapsed and Void Devises
a. If a devisee does not survive testator by 120 hours, the devise lapses. If a will does not provide otherwise,
and an anti-lapse statute does not apply, these are the default rules:
i. Specific, General, or Demonstrative Devise: If lapsed, these fall into the residue of the estate:
1. Specific Devise  Devise of property which can be distinguished with reasonable
accuracy from the other property of the estate; testator intended gift to be limited to this
specific property; can be identified as follows: words of possession (my farm, my car, my
computer), words of identification (serial number, VIN number, address, etc.), devise of
real property is specific devise.
2. General Devise  Testator intended to confer a general benefit rather than give a
particular asset. Not limited to a specific asset but intended to be satisfied from the assets
of the probate estate. Usually monetary or pecuniary (I devise sum of $10,000; 2,000
shares of apple stock).
3. Demonstrative Devise  Hybrid of specific and general; testator intends it to be satisfied
from a specified source, but if that source is insufficient, it is to be satisfied from other
assets in the probate estate (e.g., I devise 10k to be paid from the sale of my apple stock;
if that is insufficient, satisfied from the probate estate).
[If a specific, general, or demonstrative fails, the shares goes to the residue of the estate. Arizona
does not follow the residue-of-the-residue.]
ii. Residuary Devise: If lapsed, the heirs of Testator take by intestacy.
1. Residuary Devise  Gift of what remains in the probate estate after the satisfaction of
specific, general, and demonstrative advises; also, after payment of administrative,
creditor claims, funeral, statutory allowances. Usually captioned “residue”; otherwise
says something like “Everything else to ____” or “All to ____.”
2. If only a share of the residue lapses, the lapsed share goes to the other residual
devisees, NOT by intestacy.
a. Reallocate the portion of the residue to the others by % of what they get in the
will.
i. Example: A: ½, B: ¼, C: ¼, but C predeceases Testator. A gets 66%
(2/3); B gets 33% (1/3).
3. Class Gift  If one member of the class predeceases Testator, the surviving members of
the class devise the gift. A Testator cannot exclude individuals from a class gift.
4. Void Devise  If devisee is dead at the time the will is executed, or if the devisee is a
dog/cat or another ineligible taker, the devise is VOID. Same rules apply to void devises
as apply to lapsed.
Decedent’s Estates (Becker) – Spring 2022
b. Anti-Lapse Statute: Substitutes another beneficiary for the predeceased devisee under certain
circumstances. If (1) the required relationship is met, (2) there are no alternative devises, and (3) no words
of survivorship, the deceased devisee’s share will pass to the deceased devisee’s descendants by
representation.
i. A.R.S. 14-2603: Unless the will provides otherwise
1. Step 1  Required relationship between dead devisee and Testator:
a. Dead devisee is grandparent
b. Dead devisee is descendent of a grandparent
c. Dead devisee is stepchild
d. (No spouses of predeceased devisees)
2. Step 2  Make sure there are no alternative devises in the will and that there are no
words of survivorship.
3. Step 3  If they leave surviving descendants, a substitute gift is created and they take by
representation.
ii. Words of Survivorship  “To Hazel if she survives me.” Sufficiently indicates an intent that the
anti-lapse statute does not apply, and the interest passes under the default lapse rules.
iii. Class Gift  If the devise is a class gift, a substitute gift is created for surviving descendants of
the deceased devisee under an anti-lapse statute.
II.
Changes in Devised Property
a. Ademption by Extinction: Specific devise of property that does not exist at the time of Testator’s death
has been adeemed by extinction and the devisee does not receive anything.
i. This doctrine only applies to specific devises (a devise of real property (e.g., land and buildings)
is a specific devise).
ii. A.R.S. 14-1206: If lack of property is because of an accident or action of someone other than
the Testator, or if the facts indicate a high likelihood that Testator did not intend for ademption,
the devisee can be entitled to the balance of purchase price + security interest or the net sales
price.
iii. Partial ademption by extinction  “I devise my automobiles to my son.” If there were 2 cars
when this was written but when Testator dies there’s only one, the son gets 1 car.
b. Ademption by Satisfaction (Like an Advancement): Satisfaction of devise during the testator’s life
requires intent and a writing, either in a will, a contemporaneous writing, or a writing by a devisee.
i. A.R.S. 14-2609 requires:
1. The will provides for deduction of the gift;
2. The testator declared in a contemporaneous writing that the gift is in satisfaction of the
devise or that its value is to be deducted from the value of the devise; or
3. The devisee acknowledged in writing.
ii. Usually only applies to general bequests. When specific property is devised to a beneficiary but
is then given to that beneficiary during Testator’s life, the gift is adeemed by extinction, not by
satisfaction.
iii. Parent/child  If donor is parent of the beneficiary and sometime after executing a will transfers
property to beneficiary of a similar nature to that devised, there is a rebuttable presumption that
the gift is in satisfaction of the devise made by the will.
c. Stock Splits: Most courts have held that in the case of stock splits, subject to a showing of contrary intent,
a devisee of stock is entitled to additional shares received by Testator as a result of the split. (Because just
more pieces of same pie).
d. Non-Exoneration: A specific devise passes to the person and they get the property with its indebtedness
(A.R.S. 14-2607).
e. Abatement (If there’s not enough money/assets in the estate): Arises if an estate lacks sufficient assets
to pay the decedent’s debts as well as all the devises; devisees must be abated or reduced.
i. Order of reduction (unless the will provides other order):
Decedent’s Estates (Becker) – Spring 2022
Property not disposed of by will (intestate)
Residuary devises
General devises
Specific devises are last and are reduced pro rata (per share)
*Demonstrative devise will be treated as specific with respect to the value of property,
and will be treated as general with regard to the insufficiency
Example of Money/Assets in the Estate
 A single (non-married) Testator’s Will provides: “I devise my Turner Painting to A. $100,000 to B.
$50,000 to C. Residue to D.” Testator’s probate estate includes $200,000 in cash and the painting (worth
$500,000). Thus, the Probate estate is $700,000. Administrative expenses of $100,000 are due.
 The administrative expenses are paid by cash. The probate estate is now $600,000.
 What if, in the probate estate, there is no cash and only the painting?
 Expenses of administration still need to be satisfied. The Personal Representative will give A the
option: either furnish $100,000 and keep the painting, or the painting will be sold and the
proceeds will pay the administrative expenses with the rest to A.
 What if testator is married and the painting was separate property, and it was the only thing in the
probate estate? The painting was devised to A, who is a friend. Testator’s spouse wants their statutory
allowances.
 Personal representative will go to the specific devisee, A, and give the same option: A can either
furnish the $$ for the statutory allowances or sell the painting.
1.
2.
3.
4.
5.
TRUSTS
I.
Basics
a. A trust is a legal arrangement created by a settlor in which a trustee holds property as a fiduciary for one
or more beneficiaries.
i. The trustee takes legal title to the property in the trust, which allows him to deal with 3rd parties
as owner of the property
ii. Beneficiaries have equitable title to the property, which allows them to hold the trustee
responsible for breach of fiduciary duties.
b. All trusts are either:
i. Revocable (terms can be changed); or
1. The settlor can access the assets in a revocable trust during his or her lifetime (no duty to
beneficiaries)
ii. Irrevocable (terms cannot be changed).
1. The settlor cannot access the assets in an irrevocable trust during his or her lifetime (there
is a duty to beneficiaries)
c. Types of Trusts:
i. Testamentary Trust
1. Trust that is created by a will and is irrevocable upon creation.
ii. Inter-Vivos Trust
1. A trust created during the creator’s lifetime.
2. Can be either revocable or irrevocable.
a. Almost all modern trusts are irrevocable.
3. If the settlor (creator) does not have the ability to change the trust, it becomes
irrevocable.
d. Spendthrift Provisions: Most trusts have these so that creditors of Beneficiaries cannot reach
Beneficiaries’ interest, and Beneficiary cannot pledge or securitize or transfer his interest.
i. Child Support Exception  In AZ, a creditor of a beneficiary cannot force trustee to take money
out of trust to satisfy beneficiary’s creditors. Only creditor that can reach assets in that trust is
judgment creditor that has judgment for child support. As a settlor, I cannot create a trust during
Decedent’s Estates (Becker) – Spring 2022
my lifetime and put my assets in to protect from creditors. They can reach that (revocable or
irrevocable). If my parents set up trust for me, creditors cannot reach.
e. Trust vs. Equitable Discharge: An equitable charge is not a trust. It is generally a devise to a devisee
making the devisee responsible for payments to someone else. Still enforceable but no fiduciary
relationship.
II.
Creation of a Trust
a. A trust may be created by
i. (1) transferring property to another person as trustee during the settlor’s lifetime or by will or
other disposition taking effect on settlors death;
ii. (2) declaration by the owner of property that the owner holds identifiable property as trustee; or
iii. (3) exercise of power of appointment in favor of a trustee.
b. Requirements:
i. The settlor has capacity to create a trust: same as testamentary capacity;
ii. The settlor indicates an intention to create the trust: manifestation of intent to bifurcate property
into legal and equitable provisions, does not have to use the word trust; and
1. No specific words are required.
2. Settlor must manifest an intent to create the fiduciary relationship known by law as trust.
3. It does not matter if the trust instrument fails to name a trustee.
4. Testamentary trusts  If intent not clearly stated in will, it must be inferred from the
language and structure of the will in light of all the circumstances.
iii. The trust has a definite beneficiary or is a charitable trust, trust for care of an animal, or trust for
noncharitable purpose under 14-10409;
1. The power in a trustee or other person to select a beneficiary from an indefinite class is
valid. If the power is not exercised within a reasonable time, the power fails and the
property subject to the power passes to the persons who would have taken the property
had the power not been conferred. ARS 14-10402(c).
2. A beneficiary is definite if the beneficiary can be ascertained now or in the future, subject
to any rule against perpetuities. The power to distribute property to an indefinite class can
be given to a trustee.
iv. The trustee has duties to perform;
v. The same person is not the sole trustee and sole beneficiary (“No Unity of Title” rule)
1. It’s okay if you name two persons as your beneficiaries and the same two as your
trustees.
c. Other Statutory Requirements
i. Trust cannot have an illegal purpose or be against public policy.
ii. Trust cannot violate Rule Against Perpetuities (must vest within 500 years from creation)
iii. Trust does NOT have to be in writing, but testamentary trust must satisfy the Wills Act.
d. Beneficiary Interest
i. A beneficiary interest in a trust is determined by the trust instrument/document. It will layout and
provide beneficiary’s interest.
ii. Interests are either mandatory or discretionary distributions. Terms that the court will interpret if
asked to do so to enforce terms of trust.
1. Mandatory: trustee is required to make these distributions to beneficiary
2. Discretionary: in the discretion of the trustee; commonly for health, education,
maintenance, and support.
iii. A well drafted trust will have some additional language concerning beneficial interest (e.g., is
trustee allowed to consider other income sources or other factors of beneficiary in order to make
discretionary distributions?)
e. Trust Property – The Res
i. Promising to make future payments is not a trust.
III.
Decedent’s Estates (Becker) – Spring 2022
ii. A trust cannot exist without trust property
iii. Any interest that is transferrable may be put in trust (Money, land, contingent remainders,
leasehold interests, choses in action, royalties, life insurance policies)
iv. A specifically identified interest in a property
v. An expectation or hope of receiving property in the future, or an interest that has not come into
existence or has ceased to exist cannot be held in trust.
vi. If you want to add property to a trust, in AZ, change title of assets from settlor to the trust.
f. Resulting Trust
i. An equitable remedy, similar to a constructive trust, that arises by law in two instances.
1. An express trust fails to completely dispose of itself (bad drafting or people dying out of
order)
2. If one person pays the purchase price for property and causes title to the property to be
taken in the name of another person who is not a natural object of the purchaser’s bounty.
g. Secret / Semi-Secret Trusts
i. Secret Trust  When no trust is mentioned on the face of the document (the will), the court will
admit extrinsic evidence of the promise to prevent unjust enrichment (enforceable).
1. In a secret trust, there is no mention of the trust in the devise. There is just an outright
devise. If it is a secret trust, then it is enforceable and if the trustee fails to carry out the
provision the court will order a resulting trust and apply equity to ensure the trust is
carried out.
ii. Semi-Secret  When a will names a trustee but no beneficiaries, no extrinsic evidence is allowed
(not enforceable).
1. In a semi-secret trust, it is clear that the trustee is receiving for a secret beneficiary. If a
semi-secret trust appears on the face of a document, it is unenforceable and the attempted
devise falls into the residue.
h. Pets, Charitable, Honorary Trusts
i. In Arizona, the attorney general is charged with the enforcement of a charitable trust. ARS 1410405.
ii. A trust for care of a designated domestic or pet animal is valid. Different from 14-10408. The
trust terminates when no living animal is covered by the trust. If someone describes in their will
what they are attempting to do, the court will step in and fix it. ARS 14-2907(b).
iii. Except as expressly provided otherwise in the trust instrument, no portion of the trust assets can
be used to pay a trustee’s fee or any other use other than for the trust purposes or benefit of the
covered animal. ARS 14-2907(c).
iv. A trust for the care of an animal may be created to provide for the animal’s care during the
settlor’s lifetime. The trust terminates on death of the animal. Does not refer to domestic or pet
animal ARS 14-10408.
v. Noncharitable Trust—ARS 14-10409
i. Oral Trusts
i. A.R.S. 14-10407 allows for the creation of an oral trust. Proponent must show by clear and
convincing evidence that the settlor intended to create a trust. Provisions of a trust can be
established by preponderance of the evidence.
1. Personal Property can be done by oral trust, but if the subject matter of trust is real
property then it requires writing.
Trustee
a. Functions of a Trusteeship
i. Custodial function  Taking custody of the trust property and properly safeguarding it.
ii. Administrative function  Accounting and recordkeeping as well as making tax and other
required filings.
iii. Investment function  Reviewing the trust assets and making/implementing an investment
program for those assets as part of an overall strategy reasonably suited to the purpose of the trust
and needs of the Beneficiaries.
b.
c.
d.
e.
Decedent’s Estates (Becker) – Spring 2022
iv. Distribution function  Making disbursements of income or principal to the Beneficiaries in
accordance w/ the terms of the trust. If the trust gives the trustee discretion over distributions, she
must exercise the discretion prudently, in good faith, and in accordance w/ the needs and
circumstances of the Beneficiaries and the terms of the trust.
Duties of a Trustee
i. Duty to administer the trust: trustee is to administer the trust according o the trust instrument;
requires the trustee to read the trust instrument and make sure he or she is administering the trust
according to its terms
ii. Duty of skill and care: trustee has a duty to administer the trust with the skill, care, and diligence
that a person familiar with acting as a trustee would
iii. Duty to give notices: duty to give notice is determined by state law and trust instrument; when
certain events occur or fail to occur, the trustee generally must give notice to beneficiaries
iv. Duty to give information and communicate with the beneficiaries of the trust: includes providing
a copy of the trust document to the beneficiary, information concerning trust assets to the
beneficiary
v. Duty to account: requires trustee to keep accurate and detailed accounts of all receipts and
disbursement that take place during any calendar year while he or she is administering the trust;
must maintain detailed records; accounting should be provided to beneficiaries on an annual basis
vi. Duty not to delegate: may hire third parties for assistance, however, may not delegate all
responsibilities as a trustee
vii. Duty of loyalty: trustee can only act for the benefit of the beneficiaries; cannot engage in selfdealing; a trustee can use assets ONLY for the benefit of the beneficiaries
viii. Duty to avoid conflicts of interest
ix. Duty to segregate the trust property: must maintain separate accounts for trust assets
x. Duty of impartiality: trustee may not benefit one trustee over another because the trustee prefers
one over the other.
xi. Duty to invest the trust property: trustee cannot park it all in a bank account.
xii. Duty to enforce and defend claims.
xiii. Duty of confidentiality.
Powers of Trustee
i. Usually in the trust document, if not, A.R.S. 14-10815 and A.R.S. 14-10816 control  power to
distribute assets, sometimes mandatory and sometimes for health, education, maintenance and
support.
Compensation of Trustee
i. First, look to trust document. Most provide for reasonable compensation. Reasonable is addressed
in local rules. Factors:
1. The degree of risk and responsibility assumed by trustee;
2. The time required of the trustee (trustee must keep detailed and contemporaneous time
records (.10s of hour or .25 hour to keep track));
3. The value of the trust’s estate and its income;
4. Customary fees charged in community by other trustees;
5. Whether or not extraordinary services were required;
6. The novelty and difficulty of issues involved;
7. Other relevant factors (spending every day dealing with fighting beneficiaries, etc.).
 Most important of all factors is the time. Has the settlor selected a trustee who normally bills
500/hr and thus is giving up that to do this? All taken into consideration.
Who to Select as a Trustee?
i. We general want a ladder of trustees. First choice, second, and third.
ii. Provision in doc should say if there isn’t one, here is how to select (as opposed to going to court)
iii. Responsibility and reliability
iv. Experience and expertise (have they done this before)
f.
Decedent’s Estates (Becker) – Spring 2022
v. Conflicts (does this person hate their siblings who are beneficiaries)
vi. Generally, geographically available
vii. Someone who has a fiduciary mindset, understands the importance and that they have legal title
to property that is not theirs.
Pour-Over Will: A testamentary device wherein the writer of a will creates a trust, and decrees in the will
that the property in his or her estate at the time of his or her death shall be distributed to the Trustee of the
trust.
Nonprobate Transfers
I.
II.
Five Major Will Substitutes
a. Revocable (Inter-Vivos) Trust
b. Life Insurance
c. Pay on Death Accounts
d. Transfer on Death Securities
e. Pension Accounts
Revocable Trust
a. Basics
i. Essentially a will substitute, not a trust.
ii. One document that disposes of all property that can be altered and amended until the death
of the settlor.
iii. Does not have to comply with the Wills Act (A.R.S. 14-6101).
b. Duties
i. While a trust is still revocable and the settlor has capacity to revoke, the rights of the beneficiaries
are subject to the control of the settlor, and the duties of the trustee are owed exclusively to the
settlor. During the lifetime of the settlor, the duties are only to the settlor. Beneficiaries have no
interest until settlor dies (A.R.S. 14-10603).
ii. Fulp v. Gilliand: A settlor-trustee of a revocable trust does not owe a duty to remainder
beneficiaries. A beneficiary has no legally enforceable interest while the trust is revocable. Once
a settlor-trustee loses capacity, the trust becomes irrevocable and beneficiaries gain rights.
c. Revoking or Amending a Revocable Trust (A.R.S. 14-10602)
i. Unless the terms of a trust expressly provide otherwise, the trust is revocable.
ii. Joint Trusts: In Arizona, it is common for spouses or couples to have a joint revocable trust. One
spouse cannot revoke the trust without telling the other spouse.
iii. A revocable trust may be revoked or amended by:
1. Substantial compliance with a method for amendment or revocation specified in the terms
of the trust; or
a. if under the express terms of the will that the trust could be revoked by physical
act, then the trust could be revoked by physical act.
2. If the terms of the trust do not provide a method or the method provided in the terms is
not expressly made exclusive, by either:
a. A later will or codicil that expressly refers to the trust or specifically devises
property that would otherwise have passed according to the terms of the trust; or
b. Any other writing signed by the settlor manifesting clear and convincing
evidence of the settlor’s intent.
[Note: A trust can be silent as to revocation.]
d. Creditors (A.R.S. 14-6102)
i. Nonprobate assets, including revocable trusts, can still be reached by creditors, or to pay
statutory allowances, if the probate estate is insufficient. Creditors have to notify the personal
representative.
Decedent’s Estates (Becker) – Spring 2022
ii. Assets Exempt:
1. ERISA account (i.e., retirement)
2. IRAs protected by state law
3. Life insurance
4. Joint tenancy of real estate (protect the family homestead)
e. Pour-Over Will
i. Takes all of your assets not devised in the will and pours them in a revocable trust. “All property
not devised of in this will be included in a revocable trust with X as the beneficiary.”
f. Challenging a Trust
i. Arizona has a 1-year SOL after settlor’s death (2 years to challenge a will)
ii. If you notice all creditors and beneficiaries and all other interested parties, you can shorten it to 4
months.
g. Getting Property into the Trust
i. By will: When creating a will, almost always create a revocable trust as well and transfer the
probate estate into the trust through a pour-over will. It's important to have a pour-over will so a
single document controls the disposition of property into revocable trust.
ii. By special warranty deed: In AZ for transferring real property into a revocable trust the
preferred method is by special warranty deed which preserves the title insurances acquired when
the property was acquired; title for transferring property into the revocable trust is in the name of
the trustee, name of the trust, and the date.
iii. By use of nonprobate transfers at death: Naming trust as the beneficiary of life insurance,
retirement accounts, or transfer on death beneficiary; by doing this, you lose the protection if the
settlor becomes incapacitated during his or her lifetime but the property will still go into the trust
h. Practice Tips for Revocable Trusts:
i. Get property during settlor’s lifetime by re-titling. Re-title the property so that the trust owns it.
ii. Always use a special warranty deed (property from settlor to the trustee when transferring real
property into the trust)
iii. Certain types of property can’t have ownership changed (e.g., IRA) so change the beneficiary to
the trust.
iv. Create a pour over will for residuary property. Give the residue to the trust.
v. Attach a schedule to the trust showing everything that you have transferred into it.
III.
Life Insurance
a. Basics
i. The insured enters into contract with life insurance company. Insured sends money annually, and
when insured dies, insurance company sends a death benefit to the beneficiary.
ii. Income is tax free for beneficiaries and is safe from creditors.
b. Two Types:
i. Term Insurance: For a number of years; inexpensive; to protect kids/spouse.
ii. Whole Life Insurance: Forever; more expensive; better coverage; designed so that after a period
of time the investment will make money and the policy will be paid off.
c. Changing the Beneficiary
i. Majority rule is that you’re not allowed to change life insurance beneficiary by will; you must
comply with the life insurance company.
1. 14-6213 codifies this rule.
ii. Two Exceptions 
1. If did everything you could and it was through no fault of your own that it didn’t get
changed (e.g., if you die before they issue the change).
2. Divorce automatically revokes provisions in favor of a former spouse.
IV.
Pension and Retirement Accounts
Decedent’s Estates (Becker) – Spring 2022
[Note: You cannot change ownership of these accounts to a revocable trust. However, you can change the
beneficiary of these plans to be the trust.]
a. Qualified Retirement Accounts
i. Defined Benefit Plans: Retirement benefit generally sponsored by an employer; old pensions
that used to exist in corporate America. These still exist for government employees and in some
instances in corporate America. There is no separate account for the employee. The employee can
decide whether they want to receive full benefits during their lifetime or in a lower amount so that
his spouse or family can receive benefits upon death. The employee does not have a transferable
interest. The benefit either ends with the employee’s death or their spouse’s death. The interest
cannot be transferred after death and it is subject to income taxes. There is no designated
beneficiary.
ii. Defined Contribution Accounts (e.g., 401k): Separate account for the employee; sometimes the
employer will contribute. The increase and decrease of the account belongs to the employee. the
owner for the account is required to take benefits out of the account starting at age 70.5. Benefits
from the account are subject to income taxes. A married owner of the account must name his or
her spouse as the beneficiary of the account unless the spouse signs a waiver. If there is a
dissolution of marriage, there must be a qualified domestic relations order, which is a court order
to divide the account.
iii. Egelhoff: 401ks are governed by ERISA. ERISA is a federal statute that preempts a state’s
revocation on divorce statute. In order to change the beneficiary, the account owner must do so
while living. If the owner fails to do so, the beneficiary will still be the former spouse and will not
be revoked by dissolution of marriage.
b. Non-Qualified Retirement Accounts (e.g., IRA)
i. Not governed by ERISA.
ii. Individual retirement accounts.
iii. A spouse is not required to be the beneficiary.
iv. Traditional IRA  made with pre-tax dollars. Required to take out distributions at age 75 and a
half. Income tax paid on distribution.
v. Roth IRA  made with after tax dollars, grows tax free, no income tax taken on distributions.
V.
Pay on Death Accounts and Transfer on Death Securities
[Note: cannot change beneficiary by will and cannot change right of survivorship by will].
a. Single Party Bank Accounts
i. Account automatically transfers to beneficiary or the estate when the party dies.
b. Multi-Party Bank Accounts
i. During the parties’ lifetime, parties own the account in proportion to their net contribution. If you
have a bank account held by co-owners who then split, each owner gets the proportion of their net
contribution. Creditors can only reach a person’s net contribution.
ii. A married couple is presumed to own the account half and half.
iii. On the death of the last party, whatever is in the account goes to the stated beneficiary. A Party
on a multi-party bank account can change the beneficiary on the account if he is the last to die of
the parties.
1. Example: Sister 1 and Sister 2 have a multi-party bank account with their nephew as
beneficiary. Sister 1 dies first. Everything goes to Sister 2. Sister 2 is able to change
beneficiary (but not by will).
Nonprobate Transfers of Real Property
I.
Tenancy in Common: Parties each have an equal, undivided one half interest in the property. They have use and
enjoyment of the whole property.
a. If they want to separate it, both would have to file a partition action to sever the property.
b. Each co-owner can choose who will inherit his/her ownership interest upon death.
Decedent’s Estates (Becker) – Spring 2022
c. On the death of a co-tenant, the interest in the property passes according to his will or by intestacy (i.e.,
goes into the probate estate upon the death of one tenant).
II.
Joint Tenancy with Right of Survivorship: The four unities  time (parties take title at the same time), title
(unity of title), interest (parties have the same portion of interest), and possession (unity of possession).
a. On death of a joint tenant, their interest passes to surviving tenant by operation of law.
b. A will has no effect on joint tenancy.
III.
Community Property with Right of Survivorship: Ownership of property between spouses that has the benefit
of being community property and also has the benefit of right of survivorship.
a. Applies to both real property and personal property that is titled (e.g., brokerage accounts, investment
accounts, etc.)
b. Can only be husband and wife.
c. One spouse can’t transfer the real property without consent of the other.
d. Death of one spouse means that the property automatically goes to the other spouse.
i. Example: Spouse 1 has a will that says: “I devise my interest in our Community Property with
right of survivorship to my child.” Spouse 1 dies. The provision in the will is not valid with
respect to this property; it will go to surviving spouse.
e. Termination of marriage transforms this interest into a Tenancy in Common under A.R.S. 14-2804.
IV.
Beneficiary Deed (A.R.S. 33-405)
a. T can identify the beneficiary who will succeed to Blackacre on T’s death by recording a TOD deed.
During T’s life, the TOD beneficiary has no interest in Blackacre, and T retains the power to transfer it to
others or to revoke the TOD designation.
b. Upon death, beneficiary receives property (subject to encumbrances, mortgages, etc.)
c. Executed by all owners of the property. If not, valid if only the last owner has signed it.
d. Must be recorded to be valid.
e. The deed itself is not affected by a will (not revoked by provisions of the will).
Planning for Incapacity
I.
Property
a. Conservatorships (if incapacitated individual did not have a plan)
i. If an individual owns property and has not planned ahead of time and then becomes incapacitated,
the default provision for nonplanners is the appointment of a conservator by the court.
ii. Conservatorship is very expensive and time consuming. An interested party must initiate the
conservatorship proceeding. Petition, document concerning compensation, notice of hearing on
the petition, court appoints attorney for incapacitated person, may or may not appoint guardian,
court appoints investigator, court appoints physician. Protected person is paying for this and all
these records are public records (intrusive and expensive).
iii. The standard for appointment of a conservator in Arizona: (1) person is unable to manage
personal affairs; and (2) the person has property that will be wasted or dissipated unless
preponderance of the evidence standard.
b. Revocable Trust (when the incapacitated person plans ahead of time)
i. If you plan ahead of time, you do 2 things:
1. Create a revocable trust and put the person's assets into that trust; and
2. Under the terms of that trust, describe in it a way in which to determine whether the
settlor-trustee is incapacitated and therefore should no longer be trustee.
ii. No judicial involvement here!
c. Power of Attorney
II.
Decedent’s Estates (Becker) – Spring 2022
i. A power of attorney is a written document under which a principle is giving power to his or her
agent. It is very common in Arizona to have 2 agreements, one for finances and one for
healthcare.
ii. A financial power of attorney must be explicit, or very clear, if it would like to provide the agent
with authorizations to create, edit, or dissolve the principal’s trust.
iii. Historically, under principle and agency law when a principal became incapacitated, the powers
of an agent ceased on the incapacity of the principal because if the principal became
incapacitated, there was no one to monitor the agent's activities. Every state has changed their
laws to create durable power of attorney, meaning the powers of the agent continue beyond the
incapacity of the principal.
iv. Durable Power of Attorney: Effective during the incapacity of the principal until the principal
dies. The power can be drafted to be effective only upon incapacity (springing DPOA) or
immediately upon signing (better option). Requirements under A.R.S. 14-5501:
1. A written instrument; containing language that clearly indicates the principal intends to
create a durable power of attorney and clearly identifies the agent.
2. Must be signed or marked by the principal or signed in the principal’s name in principal’s
conscious presence at the principal’s direction.
3. Witnessed by a person other than the agent, agent’s spouse, agent’s children or the notary
public (no interested witnesses).
4. Must be an affidavit before the notary public.
[Note: An agent acting under POA cannot make, amend, or revoke a principal’s will, but he can
create, modify, or revoke a trust if the power to do so is expressly granted in the document. In
Arizona, the language authorizing this power needs to be explicit].
Healthcare
a. Guardianship (A.R.S. 36-3231): The default plan for a person who has not made plans for their own
health care decisions if they become incapacitated is guardianship (similar to conservatorship, expensive
and intrusive). Guardian appointed as follows:
i. Spouse, unless legal separation
ii. Adult child
iii. Parent
iv. Domestic partner
v. Brother or sister
vi. Close friend
[Note: these people shall follow patient’s wishes as if they are known].
b. Healthcare Power of Attorney (preferred)
i. Appointing an agent to make healthcare decisions. The doctor will determine when the principal
cannot make informed consent anymore and the healthcare power of attorney needs to step in.
ii. The healthcare power of attorney should refer to a living will. A living will specifically describes
end of life wishes/decisions. It is best practice to make the living will guidelines for the agent
rather than binding so the agent may make decisions with the physician’s advice when the time
comes.
Rights of Surviving Spouse
I.
Community Property (A.R.S. 25-211)
a. All property acquired during the marriage is community property, except that acquired by gift, devise or
decent. Any property acquired after the filing of the petition for dissolution of marriage is considered
separate property.
b. A gift form one spouse to another can be separate property.
c. There is a presumption that all property acquired during the marriage is community property, regardless
of how the property it titled.
d. Property that becomes commingled is presumed to be community property.
Decedent’s Estates (Becker) – Spring 2022
e. Spouses have equal control over community property. Some transactions require consent by both parties,
notably the disposition of community real property.
II.
Migrating Couples
a. Where the real property is located, the law of that state determines the character of said property.
b. With respect to personal property, the law of the marital domicile at the time personal property is acquired
determines the character of that property.
c. The law of the martial domicile on the death of one spouse, determines the rights of the surviving spouse.
III.
Protections for Surviving Spouse
a. Statutory Allowances: Applies when the domicile of the decedent is in Arizona, regardless of domicile of
surviving spouse or children. All of these allowances have priority over creditors, but not cost of
administration.
i. Homestead Allowance: $18,000
ii. Exempt Property Allowance: $7,000
iii. Family Allowance: $12,000
b. Waiver and Premarital Agreements: These statutory allowances cannot be defeated by a will but could
be waived by the surviving spouse. A surviving spouse’s waiver is not enforceable if the surviving spouse
provides that either of the following is true:
i. That the person did not execute the waiver voluntarily; or
ii. The waiver was unconscionable when it was executed and before its execution that person:
1. Was not provided fair and reasonable disclosure of the property or financial obligations
of decedent;
2. Did not voluntarily and expressly waive, in writing, right to disclosure; or
3. Did not have or reasonably could not have had an adequate knowledge of the property.
[Note: The general rule is that both spouses have to represented by counsel. If not, probably will
not be upheld].
Protection Against Unintentional Omission
See examples in Clark’s outline.
I.
Omitted Spouse (A.R.S. 14-2301)
a. If Testator’s surviving spouse married Testator after Testator made his will, the surviving spouse is
entitled to a share. This applies to shares that are not already devised to a child of Testator who was born
before Testator married the spouse and who is not that spouse’s kid, and devises made to a descendant of
that child or that passes by representation to that child.
b. Surviving spouse starts out with their intestate share. From the intestate share, we subtract devises made
to Testator’s children (and their descendants), provided that the children are not mothered by surviving
spouse.
c. Exceptions: The statute does not apply if…
i. It appears the will was made in contemplation of the testator’s marriage to surviving spouse;
ii. The will expresses intention to be effective notwithstanding a subsequent marriage; or
iii. Testator provided for the spouse by transfer outside the will and the intent that the transfer is in
lieu of a testamentary provision is shown by the testator’s statements or can be reasonably
inferred form the amount of the transfer or other evidence.
d. Burden of proof is on person arguing that the spouse is not an omitted spouse.
II.
Omitted Child (A.R.S. 14-2302)
a. No Living Children at Execution
i. If the testator had no child living when the testator executed the will, an omitted child receives a
share in the estate equal in value to what the child would have received if the testator had died
Decedent’s Estates (Becker) – Spring 2022
intestate, unless the will devised all or substantially all of the estate to the other parent of the
omitted child and that other parent survives the testator and is entitled to take under the will.
b. Living Children at Execution
i. If the Testator had other living children at the time of the execution of the will, the omitted child
is entitled to receive a share of whatever they would have taken, had the testator divided that
amount equally between the children. The amounts abate proportionally between the children
who were specifically devised property in the will. Only applies to children born or adopted after
execution.
ii. Exceptions:
1. It appears from the will that the omission was intentional; or
2. There are transfers outside of the will that were intended to be, or reasonably could be
inferred to be, a substitute.
iii. If a child is left out of a will solely because the testator thought they were dead, they are
considered an omitted child for the purposes of the statute.