If you’ve been chosen to be the executor of someone’s estate, how can you determine whether their will is valid? The court makes the ultimate decision on whether or not a will is legally sound. But it helps to know what’s required for validity, so you know what to plan for as an executor.
It’s also important to know what could invalidate this essential document to protect your own estate planning interests.
Requirements for a legally sound will include the manner in which the will was prepared and signed, among other factors. Some people choose to challenge a will in court because they doubt that its creator had the mental capacity necessary to make a valid document.
We’ll go over which factors to consider when ensuring that a will is correctly created.
What to Consider About Will Validity
- A will allows you to decide what happens to your assets, property, and minor children when you pass on
- To be valid, a will must be in writing (typed or handwritten), and signed and dated in the presence of witnesses
- Factors like coercion or improper execution can render a will invalid
- An estate planning lawyer can help you draft, check, and update your will
Creating a will is of vital importance, as it’s your chance to give back to your loved ones and prevent extra hassle for them after you die.
Required Factors for Validity
To create a will, you must be of legal age (18 in most states, including Arizona) and enter into the agreement voluntarily. If you were coerced into it, it’s not technically a legally valid form. Here are some other factors that are required for a will to be valid:
You must have “testament capacity” to make a legally sound will. This means that you know that you’re making one and understand that you’re disposing of your assets and property.
It Must Be in Writing
The terms of the will must be handwritten or typed out. Your will might only span a single sheet of paper or require multiple, depending on the size and complexity of the estate.
Your will must dispose of your property by listing assets and distributing them to your family and friends.
Will Must Be Signed and Dated With Witnesses
Your will must be signed and dated in the presence of two witnesses, who also need to provide their signatures. The individuals must be “generally competent” (which applies to most people of sound mind who are at least 18 years old) to serve in this position.
The witnesses must be “disinterested,” meaning they won’t benefit from the terms of the will. Arizona law won’t invalidate your will if a beneficiary or other interested party serves in this role, but it’s still best to find impartial witnesses.
This is just a general overview of the requirements for will validity. Depending on your unique circumstance, there are some other formalities you may need to create a valid will.
What Factors Make a Will Invalid?
It’s important to know which pitfalls to avoid when you’re creating your will. Here are some common reasons your will may be invalid:
It’s Been Replaced By a More Recent Will
When someone creates a new will, it makes their previous will invalid. The most recent will created always has the final say on how that person’s assets are handled.
Fraud or Undue Influence
If your will was created fraudulently, or under coercion or undue influence, the court will invalidate it. If you’re presented with a will to sign as if it’s an ordinary contract, it will qualify as fraudulently obtained and won’t be honored.
It Was Improperly Executed
Arizona law states that a will must be witnessed by two people to be valid. If these conditions aren’t met, the will won’t count in court.
How Working With an Attorney Can Help
A legally valid will allows you not only to distribute your estate after death but gives you a chance to designate a guardian for your minor children and make a positive impact on your loved ones’ lives. While state law doesn’t require that a lawyer assists in will preparation, it can help to double check the document’s validity if you have any doubts.
Frequently Asked Questions About Wills
Here are a few of the most common questions people ask about wills:
Q: What happens if I don’t create a will before I die?
If you die without a will or a similar legal distribution device, Arizona law will determine inheritance rights for your assets. Usually, the deceased person’s spouse or children will be first in line to receive the assets in the estate, followed by parents, siblings, or grandparents. If you don’t have any relatives who qualify according to laws on the matter, the property will go to the state.
Q: How do I ensure my minor children are cared for after I pass on?
Your will should designate a personal guardian who will take care of your children if the surviving parent can’t care for them or both parents have passed on. They will have guardianship until your children turn 18.
Q: How do I make changes to my will?
You can change it by making a new one or making an addition. If you need to make substantial changes, it’s often easier to start over. To revoke your will, you must include a statement in the new document revoking your previous wills. If you just need to remove a beneficiary, change the name of the executor, or add a new provision, making a simple change (known as a codicil) to your existing will makes more sense.
What to Do if You Need Help With a Will in Arizona
Creating an estate plan can be a complicated process, especially when you have a large estate or many family members to account for. While the information here serves as a general guide, an estate planning attorney can give you answers to more specific questions. They can help you create a will, make amendments, or ensure that it’s legally valid.
Call Arizona Estate Attorney Dave Weed at (480)467-4325 to discuss your case today.
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