Introduction
Arizona is one of 18 states that have adopted the Uniform Probate Code (UPC), a set of uniform guidelines that are intended to simplify probate by standardizing probate proceedings across state lines. Under the UPC, the state of Arizona does not require notarized wills.
Arizona Will Requirements
In Arizona, the standards set forth in the UPC are codified in Arizona Revised Statutes Title 14 (Title 14). Title 14 also regulates trusts, estates, and protective proceedings. According to Title 14, there are 6 primary requirements for a valid will:
- The testator (the person who is writing the will) must be at least 18 years old and possess a sound mind (ARS 14-2501)
- The testator must have testamentary intent (the intent to bequeath assets by will)
- The will must be in writing (ARS 14-2502)
- The will must be signed by the testator, or by someone under the direction of the testator in the testator’s conscious presence
- The will must be signed by two witnesses
- The testator cannot be under duress or undue influence
Additionally, the will that is submitted to probate court must be the decedent’s last will and testament, meaning it constitutes the decedent’s final and most recent version of the will. Any versions of the will dated before the last will and testament are considered invalid, though the court may consider these documents if any portions of the current will are invalidated.
If a probate judge or clerk determines that a decedent’s will doesn’t satisfy one or more of these requirements, the will may be invalidated by the court. Depending on the situation, the court can invalidate parts of the will that are impacted by the discrepancies, or the court can invalidate the entire will.
Witness Requirements
ARS 14-2501 includes two provisions regarding witnesses to a will:
- The witness must be generally competent – similar to the requirements for the testator, the witness must be 18 or older and possess a sound mind.
- The witnesses may have an interest in the will – while some states prohibit the use of “interested witnesses” (beneficiaries and legal heirs to the estate), Arizona allows the use of interested witnesses. The statute clearly states that the signing of a will by an interested witness doesn’t invalidate the will or any provision of it.
Holographic Wills
There is one notable exception to Arizona’s witness requirements, and that’s handwritten wills (legally referred to as holographic wills). While many states do not accept holographic wills, Arizona accepts handwritten wills as long as the signature and material provisions of the will match the testator’s handwriting. Interestingly, a holographic will doesn’t need to be signed by any witnesses.
Self-proved Wills
Although Arizona wills do not need to be notarized, the state does provide an incentive to have your will notarized. If the testator and the witnesses sign in the presence of a notary public and have the will notarized, the will becomes a self-proven will, and qualifies for expedited authentication when the document is submitted to probate court. The court will not need to summon the witnesses to court to authenticate the will, as the notary public’s authentication of the signatures is legally acceptable.
What is the Purpose of a Will?
A last will and testament is intended to set forth an individual’s final wishes for his or her estate. While a will can include a variety of directions, there are four core provisions that every will should include:
- Nominate a personal representative – the personal representative or executor is the individual who is authorized to manage your estate after you pass away. This individual will have full access to your assets and will be tasked with settling your liabilities and distributing your assets, so it’s important to nominate someone who is trustworthy and well qualified for the position. If you fail to nominate a personal representative, or if the court determines that the nominated individual isn’t qualified, any interested party to your estate can petition to be the personal representative (e.g. a family member, close friend, or trusted advisor). In rare cases where the court can’t find a qualified personal representative, the judge can appoint a third-party special administrator to manage your estate.
- Designate a guardian for minor children – if you have minor children, it’s important to designate a guardian for them in your will. It’s also a good idea to nominate a backup guardian who can take the minor children if the primary guardian is unable or unwilling to accept the responsibility.
- Bequeath property – this is of course the primary purpose of a will. If your estate is small or structurally simple, it may be sufficient to generally direct how your estate should be divided amongst the beneficiaries (e.g. “my entire estate goes to my spouse,” or “the entire estate shall be divided equally amongst my four children”). If the estate is large and complex, it may be wise to address certain aspects of your estate specifically. Either way, it’s critical to clearly identify the beneficiaries, so be sure to include each beneficiary’s full legal name and date of birth for easy identification by the court. Also, consider adding a “catch-all” phrase in the will to pick up any assets that are unintentionally missed in the will (e.g. any remaining assets in the estate shall be gifted to the Brown Family Charitable Foundation).
- Funeral and burial instructions – while this final part isn’t required, it’s highly recommended. Clearly state your preferences for a funeral and burial and indicate which estate funds should be used to pay for the services. Share these plans with a few family members, too, in case your will isn’t opened until after your funeral.
What Happens if You Die Without a Will?
When someone dies without a will, they die “intestate,” and their estate will be distributed according to the state’s intestacy laws. The court will appoint a personal representative to manage the estate (usually a family member), and the personal representative will be tasked with determining the estate’s legal heirs.
Generally speaking, intestate succession gives priority to the surviving spouse and the decedent’s children. In the absence of a spouse, children, or descendants of the decedent’s children, the estate may go to the decedent’s parents, siblings, or extended family members.
Call our Arizona Estate Planning team at (480)467-4325 to discuss your case today.