When you die without a will, you die “intestate,” leaving your estate to the direction of the state’s intestate succession laws. Intestacy proceedings leave your family with little to no say over how your assets are distributed, and it can significantly lengthen the time it takes to ultimately distribute your assets to your heirs. To avoid the hassle and save your family the additional time and cost, it’s essential to have a last will and testament.
In the state of Arizona, there are 6 requirements for a valid last will and testament:
- The testator needs to be 18 or older
- The testator needs testamentary intent
- The testator needs to possess testamentary capacity
- The testator cannot be unduly influenced
- The testator needs to sign and date the will, or direct someone to do it for him
- The will needs to be signed by two witnesses
The Testator Needs to Be 18 or Older
Minors cannot own property, so it makes sense that they don’t have the capacity to gift assets, either. If a minor drafts a will, a probate judge will invalidate the will.
The Testator Needs Testamentary Intent
Testamentary intent is the intent to give instructions for what will happen to the testator’s property when they die. Testamentary intent can be difficult to prove or disprove if someone contests the will, though it tends to go hand-in-hand with undue influence.
The Testator Needs to Possess Testamentary Capacity
The testator must be of sound mind when the will is drafted and signed. Testators who are incapacitated—perhaps due to a coma, chronic illness, senility, dementia, or Alzheimer’s—do not have the testamentary capacity to write a will. If someone contests a will due to a lack of testamentary capacity, the court will usually turn to the testator’s physicians or psychologist to determine their mental state. Note that it doesn’t matter if the testator is currently incapacitated, as long as they possessed testamentary capacity previously when the will was signed.
The Testator Cannot Be Unduly Influenced
For obvious reasons, a will cannot be signed under undue influence. If the testator is under duress or subject to manipulation, a probate judge will invalidate the will. Unfortunately, cases of elder abuse where family members pressure an elderly parent to gift them assets in their will are not uncommon.
The Grantor Needs to Sign and Date the Will, or Direct Someone to Do It for Them
While some states require the grantor sign their own will, the state of Arizona will allow someone to sign on behalf of the testator if they are unable to do it themselves. In such cases, the witnesses will need to attest that the will was signed by a proxy under the testator’s direction. That said, wills signed by a proxy are certainly subject to contest in probate court. If the testator physically cannot sign the will, it may be wise to have the proxy sign for them in the presence of a notary public who can officially attest to the signature’s validity.
The Will Needs to be Signed by Two Witnesses
When the two witnesses sign the will, they are attesting that the will has been drafted and signed by the testator under all of the previously discussed requirements. If anyone contests the will in probate court, the judge will call on the witnesses to testify to the will’s validity.
The state of Arizona is one of the few states that allow interested witnesses—that is, witnesses who are also listed as beneficiaries in the will. However, it’s still generally a good idea to avoid the practice and choose two witnesses who have no beneficial interest in your estate.
What is a Self-proven Will?
On the subject of witnesses, it’s important to understand the difference witnessed wills and self-proved wills. Witnessed wills are the standard practice, where the two witnesses sign in the presence of the testator. When the will is submitted to the county court for probate, a judge may ask the witnesses to appear in court and testify to the will’s validity.
Self-proved wills avoid the hassle of a potential court appearance by having the witnesses and the testator sign the will in the presence of a notary public. A notarized will is far more likely to overcome contests in probate court and is the better route when possible. If you’re drafting your will with the help of an attorney, there should be a secretary or other employee at the firm who is notarized to make this step easy.
Can a Will be Handwritten?
Handwritten wills are referred to as “holographic” wills. While some states do not allow handwritten wills, the state of Arizona accepts holographic wills as long as the signature and material provisions are in the testator’s handwriting. Interestingly, holographic wills can be valid with or without witnesses.
Key Provisions in a Last Will and Testament
Wills can be as specific or broad as necessary, but they generally have 3 core purposes:
- Name a guardian for minor children
- Nominate an executor
- Provide instruction for distribution of assets
Naming a Guardian for Minor Children
When naming a guardian for minor children, it’s smart to list one or two backup guardians in case the primary guardian is unable to assume the responsibility. In the absence of a chosen guardian, the court will need to appoint a guardian and/or conservator, possibly leaving your children in the custody of the state for some time until a qualified family member or friend can be appointed.
Nominating an Executor
The executor is the personal representative who is authorized to handle your estate when you die. An executor will be tasked with gathering your assets, settling your liabilities, distributing your assets, and ultimately closing your estate. Considering the weight of this responsibility, it’s important to choose an executor who is competent and trustworthy.
As with naming a guardian for minor children, it’s also a good idea to name a backup executor who can take over if the primary executor cannot fulfill their duties. If you have a complex estate, you may want to consider appointing one or more professionals to the duty, such as an attorney, accountant, or financial advisor. If you do not nominate an executor in your will, or if the court is unable to find a family member who is suitable to the task, a probate judge can appoint a third-party special administrator. While an administrator can be counted on for fair, unbiased administration, the estate will need to pick up the administrator’s bill.
When it comes to assigning assets to beneficiaries in your will, you can only address assets that are subject to probate. This includes individual bank and brokerage accounts; real property owned individually or as tenants in common; and personal property, such as vehicles, art, collectibles, jewelry, weapons, and furniture. Wherever possible, try to assign specific assets to specific people. It’s also a good idea to include a catch-all clause in your will to ensure nothing is accidentally left out.
Assets that are not subject to probate should not be addressed in your will. These assets usually have a contractual beneficiary built into the account itself, and the contractual beneficiary will always trump beneficiaries listed in your will. Such assets include:
- Bank and brokerage accounts with a payable-on-death or transfer-on-death beneficiary
- Real estate owned as joint tenants or as tenants in the entirety
- Life insurance policies
- Retirement accounts
For long-term peace of mind, contact us to set up a consultation today. We look forward to helping with your will and other estate planning needs.
Call Arizona Estate Attorney Dave Weed at (480)467-4325 to discuss your case today.
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