Frist let’s all agree on what a Will is and what it “does”? A Will is the central part of an estate plan. In a Will the person, during their life, decides how their money and property will be distributed upon their death, who will be responsible for administering their estate (called the personal representative aka executor), and names a guardian/conservator for minor children.
Unfortunately, you can’t simply write stuff on any piece of paper and assume it will be a valid Will under Arizona law.
In order to be a valid Will it must meet the following criteria:
1. The person making the Will (called the testator) must be 18 years of age or older and must be of sound mind;
2. The Will must be in writing;
3. The document must be signed by the person making the Will;
4. You must have two witnesses who are in the presence of the testator and the other witness;
5. The person signing the Will must be able to understand the extent of his property. This can be a general understanding;
6. The person signing the Will must know the individuals who would naturally benefit from his/her death. (In other words, who are the person’s natural heirs such as, a spouse or children); and
7. Must understand where the property will go after the testator’s death.
Beware, there is more than one type of Will. For example:
A holographic Will is one that is in the handwriting of the testator.
In order for a holographic Will to be valid in Arizona, it must be signed by the testator and the material provisions must be in the testator’s handwriting. What is a material provision? Those are the provisions of the Will that name beneficiaries and gifts. The writing must also indicate that the testator intends and wants to dispose of his or her property with the writing. A holographic Will can be witnessed, but that is not required.
Who can be Witnesses?
The law says any person who is “generally competent” so not a minor. However, it is a good idea they are not beneficiaries of the Will, although that alone does not invalidate the Will.
Admitting the Will to probate:
Arizona law allows for Wills to be “self-proved”. That means that if the Will meets the above criteria, the Probate Court will accept it and it can probated in the simplified informal probate process. Since a court automatically accepts a self-proven Will as authentic, witnesses to a self-proven Will are not required to testify in court. You can find the self-proved sample form in (ARS § 14-2504). The affidavit should either be part of the Will itself or attached to it.
I hope this was helpful. If you want to know about estate planning visit us at www.kilkuplaw.com.
Written by: Jennifer Kupiszewski, Esq.
The lawyer disclaimer: We hope you find this informative, but it is not legal advice. You should consult your own attorney, who can review your specific situation and account for variations in state law and local practices. Laws and regulations are constantly changing, so the longer it has been since this was written, the greater the likelihood that the information might be out of date.
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