Introduction
In the state of Arizona, wills and intestate succession are governed by ARS Title 14 Chapter 2.
Requirements of the Testator
An adult who is 18 or older and who possesses a sound mind can write a will (ARS 14-2501). To be of sound mind, the person who is writing the will (the testator) cannot be mentally incapacitated (disabled, comatose, senile, dementia, Alzheimer’s, etc.). To protect against fraud, manipulation, and elder abuse, the testator cannot be subject to duress or undue influence. If any of these parameters are violated, a probate judge can invalidate the testator’s will.
Requirements of the Witnesses
The testator will need to sign their will in the presence of two witnesses. If the testator can’t physically sign their will, they can direct a proxy to do so on their behalf. Some states don’t allow beneficiaries of the will to serve as witnesses, but the state of Arizona allows the practice. That said, it’s still a good idea to choose uninterested witnesses to sign the will if possible.
When the will is submitted to probate court after the testator’s death, a judge may call on the witnesses to appear in court and testify to the will’s validity. If the will is signed by the testator and witnesses in the presence of a notary public, the need to testify is waived. Notarized wills are referred to as self-proved wills (see the form here).
Can a Last Will and Testament be Handwritten?
Handwritten wills (known as holographic wills) are acceptable in the state of Arizona. To validate the will, the court will need to verify that the signature and the material provisions in the will match the testator’s handwriting. Interestingly, a holographic will is acceptable with or without witnesses.
Last Will and Testament Format
While every will should be adapted to the testator’s unique situation, most wills have the same core parts:
- Name a guardian for minor children
- Nominate an executor to manage the estate
- Distribute assets to beneficiaries
Name a Guardian for Minor Children
This may be the most important part of the will if you have minor children. If your spouse or significant-other is not the child’s biological parent or adoptive parent, don’t assume that the child will automatically end up in their care. In such cases, it’s a good idea to name your significant-other as the primary guardian, and list another family member or two as the backup guardians.
Nominate an Executor to Manage the Estate
An executor is the individual who is appointed to serve as the decedent’s personal representative throughout the estate-closing process. The executor will be responsible for submitting the will to probate court, notifying interested parties of the probate proceedings, gathering the decedent’s assets, settling the estate’s outstanding liabilities, and distributing the remaining assets to the decedent’s beneficiaries.
Considering the magnitude of the responsibility, it’s important to nominate an executor who is competent and responsible. It’s also a good idea to include a backup executor. A backup executor can assume the position if the primary executor is dismissed, and they can provide a second set of eyes for a complicated estate.
If you fail to nominate an executor, a family member or friend can petition the court to serve as your estate’s representative. If the probate judge is unable to find a family member who is qualified to be the personal representative, or if there is too much discord amongst family members to come to a consensus, the court can appoint a third-party special administrator. While the administrator can be counted on to provide fair and unbiased oversight, the decedent’s estate will have to compensate the administrator for their time.
Distribute Assets to Beneficiaries
When you think about a will, this is the part that usually comes to mind—deciding which of your heirs will receive an inheritance, and exactly what assets they are to receive. As you do so, try to be as specific as possible. Include each beneficiary’s full legal name and date of birth for identification, and try to attach a phone number or address where your attorney can reach them. Offer item descriptions where appropriate, and be sure to include a blanket catch-all phrase to pick up any personal possessions you might have missed (e.g. Susan Baker is to receive all other contents in the house that have not been specifically bequeathed).
Note that not all assets need to be addressed in your will. Any assets that have a contractual beneficiary built into the account will automatically transfer to the beneficiary upon your death. Such assets (sometimes called non-probate assets) include:
- Bank and brokerage accounts with a transfer-on-death or payable-on-death beneficiary
- Real estate owned individually or as tenants in the entirety
- Retirement accounts
- Life insurance policies
- Trusts
For each of these assets, all you need to do is ensure that the proper beneficiaries are listed on the accounts. It’s a good idea to register a contingent beneficiary, too, in case the primary beneficiary passes away before you. When you die, someone will just need to submit a copy of your death certificate to the financial institutions holding your assets to process the transfer.
How to Probate a Last Will and Testament
When the testator passes away, the individual in possession of the will needs to submit the document to the probate court in the county where the decedent lived or owned property. In the petition for probate, the petitioner needs to include an inventory of the decedent’s assets, and the names and addresses of family members who will need to be notified. The court will schedule a hearing to validate the will and appoint the personal representative.
As long as there are no contests to the will or objections to the personal representative, the proceedings will proceed informally with minimal court supervision. The personal representative will generally be free to follow the process on their own, with a final approval from the court when the assets are ready to be distributed. Informal probate usually takes about 4 – 6 months to complete, with the majority of that timeline being a mandatory waiting period that gives the decedent’s creditors enough time to file claims against the estate.
If, however, there are any contests or objections, the proceedings will transition to formal probate. Formal probate will require varying levels of court supervision, depending on the validity of the contests or objections and the complexity of the estate. Formal probate can take up to a year or longer to complete, and will come with significantly higher legal fees.
Call our Estate team at (480)467-4325 to discuss your case today.
