Introduction: Navigating the Complexities of a Valid Will in Arizona
Estate planning is an important issue and must be done within the specific legal framework of Arizona law. The state’s unique laws and requirements can make this task complex and daunting. A minor oversight in drafting or executing a Last Will and Testament under Arizona law can render the document invalid. This may result in the distribution of the estate under Arizona’s default or intestacy laws (where someone dies without a will). This situation that may not reflect the individual’s true intentions.
The complexities of Arizona wills don’t end at their creation. Wills take effect when and only when the testator or will creator dies. So, wills often come under legal scrutiny many years later—either being challenged for their validity or defended against such attacks.
Whether you are seeking to uphold the integrity of a will or question its legitimacy under Arizona law, the issues are intricate and nuanced. Having an experienced probate litigation law firm, like Berk Law Group, is essential.
This comprehensive article, tailored to Arizona law serves as an essential guide. It covers the foundational elements of creating a valid will in Arizona, from understanding the state-specific qualifications to exploring the different types of wills recognized by Arizona law. The article also delves into the legal options available for those who find themselves either defending a will contest against challenges or questioning its validity. Of course, there is no substitute for consulting an experienced attorney.
Arizona Law: the Basics
The right to transfer your property at death through a valid last will and testament is only allowed if you strictly follow the requirements of Arizona law.
Pursuant to Arizona Revised Statutes (A.R.S.) § 14-2501, “A person who is eighteen years of age or older and who is of sound mind may make a will.” The “testator” is the one adopting the Will. To be valid the person must:
- be at least 18 years old
- have testamentary intent – the intent to give instructions for what will happen to his property upon death
- have testamentary capacity (sound mind)
- not be unduly influenced; and
- sign the will or have someone else sign it at his direction
Four Types of Last Will and Testaments
Arizona law recognizes essentially four types of Wills, (a) non self-proved or witnessed Wills (b) self-proved Wills; (c) Holographic (hand-written) Wills; and (d) electronic Wills, each of which we explain in more detail below.
Wills do not expire or become invalid after a certain amount of time. But, it is a good idea to review your will periodically. Certain life events or changes in circumstances may warrant changing your will.
Reasons to Consider Updating your Will
Your should consider and consult with your attorney about amending your will if you
- get married or divorced,
- have children,
- move to a new state,
- receive substantial new property or other assets.
At Berk Law Group, we do not do estate planning. We do not write wills and trusts. We litigate over them. We specialize in probate, trust and estate disputes and litigation, as well as related elder law disputes such as for abuse, neglect and exploitation of vulnerable adults. We can provide referrals to estate planning attorneys though.
Let’s delve into the different types of wills recognized in Arizona.
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Non-Self Proved Wills
Pursuant to A.R.S. § 14-2502, a non-self proving Will, must satisfy the following requirements:
- In writing.
- Signed by the testator or in the testator’s name by some other individual in the testator’s conscious presence and by the testator’s direction.
- Signed by at least two people, each of whom signed within a reasonable time after that person witnessed either the signing of the will as described in paragraph 2 or the testator’s acknowledgment of that signature or acknowledgment of the will.
In order to probate a non-self proved Will, it generally requires the testimony of a witness that the Will is authentic and genuine.
Self Proved Wills
Pursuant to A.R.S. § 14-2504, a Will may be adopted and be self-proved before or after it is signed if it is acknowledged “by the testator and by affidavits of the witnesses if the acknowledgment and affidavits are made before an officer authorized to administer oaths under the laws of the state in which execution occurs and are evidenced by the officer’s certificate, under official seal” in substantially the form required by the statute.
Because of the affidavit, a self-proved will, unlike a non-self proved will, generally does not require the testimony of a witness in order to prove that the Will is genuine.
Holographic (Hand-Written) Wills
Hand-written wills are valid in Arizona. Pursuant to A.R.S. § 14-2503, “[a] will that does not comply with § 14-2502 is valid as a holographic will, whether or not witnessed, if the signature and the material provisions are in the handwriting of the testator.”
Many people purchase form wills online or from supply or stationery stores. Those forms typically contain printed or boilerplate provisions followed by blanks where the testator identifies the property to be disposed of, designates the names of the beneficiaries and the percentages of the estate to which each beneficiary is entitled.
Some cases previously held that those forms did not adequately reflect the testator’s intent to adopt a will (to perform a testamentary act) and, thus were invalid and unenforceable. Given the current wording of the statue, however, generally Holographic Wills on preprinted forms will be enforced in Arizona. However, it is generally inadvisable to use such forms since preparing a Will is a complicated legal document, which has many variations and can create many unforeseen issues. Thus, it is best to have a qualified attorney prepare a custom Will for your particular situation.
Electronic Wills
Effective June 30, 2019, the Arizona legislature amended our probate code to permit electronic wills. As you would expect, electronic wills present numerous issues not applicable to paper wills. So, in order to be valid in Arizona, an electronic will must meet several specific requirements. Read our article about Arizona electronic wills.
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Legal Consequences of an Invalid Will in Arizona
If a will is found to be invalid in Arizona and there is no prior will that is revived or brought back into effect because of the invalidity of the most current will, the estate will be distributed according to Arizona’s intestacy laws. This could mean that assets may not go to the intended beneficiaries, leading to potential family disputes and legal challenges.
The Role of Personal Representatives and Witnesses in Arizona
Choosing a reliable personal representative and witnesses is vital when creating a will in Arizona. The personal representative is responsible for carrying out the will’s instructions, while witnesses help validate the will’s authenticity. According to Arizona law, witnesses must be at least 18 years old and should not be beneficiaries in the will to avoid conflicts of interest.
More specifically, the role of a personal representative is to act as a fiduciary, entrusted with the responsibility of managing the probate estate for the benefit of creditors and beneficiaries/heirs throughout the entire process until the final distribution of assets to the designated heirs. Primarily, the personal representative is responsible for collecting all of the estate assets, safeguarding the property included in the estate, addressing any outstanding debts or claims from creditors, managing tax obligations, pursuing any necessary legal actions on behalf of the estate, making decisions regarding the liquidation of assets if required, and investing the estate assets appropriately. Additionally, the personal representative is required to communicate with family members involved, mediating disputes related to personal property distribution, answering queries from beneficiaries, overseeing and coordinating with the estate attorney, accountant and other professionals, and, in some cases, finding suitable homes for any pets left behind by the deceased.
What happens if a beneficiary dies before the will maker?
In the event that a beneficiary named in your Will passes away before you, it is important to address this scenario. To ensure your wishes are carried out, it is crucial to keep your Will up to date as your assets and life situations change. Similar to a Revocable Living Trust, a well-drafted Will should clearly specify who will receive the inheritance in such circumstances.
When working with a knowledgeable Estate Planning Lawyer, they will inquire about your desired outcome and tailor the terms of the Will accordingly. For example, imagine you reside in Bergen County, New Jersey, and you wish to establish an Irrevocable Third Person Special Needs Trust for your autistic granddaughter living in Philadelphia. Your lawyer might inquire about the fate of any remaining funds in the trust if your granddaughter predeceases you. At this point, you can express your preferences based on your individual circumstances. For instance, you may decide that if your granddaughter does not survive you, the resources originally allocated to the Special Needs Trust will instead pass to your son. Alternatively, you might choose to direct any remaining funds to a charity dedicated to supporting Autism research if your granddaughter passes away after you.
These options are up to you, the will maker. The point is that all scenarios should be addressed, whether specifically or generally. By addressing the scenario of a beneficiary’s predecease in your Will and consulting with a qualified professional, you can ensure your assets are distributed in accordance with your intentions, regardless of any unfortunate circumstances that may arise.
How to Contest or Defend a Will in Arizona
Contesting or defend a will involves several steps and nuances. Here are some tips:
Be Aware of Deadlines: The deadline to contest a will depends on the circumstances and whether certain notices have been given. Act promptly. Carefully read any legal notices that you receive. Consult with an experienced attorney. If you are the appointed personal representative, give applicable notices when and as you can.
Establish Grounds and Do an Initial Investigation: Determine the evidence and legal reason for contesting the will, such as lack of capacity or undue influence.
Determine Whether the Will Contains a No-Contest Clause: If the will includes a disinheritance or no contest clause, be careful. Know your rights. Learn more
File a Petition: If the circumstances warrant, submit a formal challenge in the Arizona probate court within the applicable deadline. If you are defending the will, make sure you appear in court when required and file any responses or objections by the applicable deadline.
Gather Additional Evidence: Collect documents and information that support your case.
Legal Proceedings: Be prepared for settlement or mediation conferences where the parties will have the chance to resolve the matter. If not, be ready for court hearings where both sides will present their case.
Know the Burdens: A properly executed will is presumed valid. Everyone is presumed to sign their will with testamentary capacity and free of undue influence. So, the burden is on the challenger to prove otherwise.
Validate or Invalidate the Will: Present evidence that confirms the will’s legality or invalidity. Wills may be invalided based on, among other things, lack of testamentary capacity or undue influence. The drafting attorney is often an important witness. Get medical records.
Counter Claims: Address the challenger’s claims with counter-arguments and evidence. Consider whether the challenger has done anything wrong, like committed undue influence, or financial exploitation, abuse or neglect of a vulnerable adult.
Legal Counsel: Consider hiring an Arizona-based estate litigation attorney for expert advice and representation.
Resources and Tools
For more information on Arizona wills and estate planning, consider the following resources:
Arizona Probate Court Forms
Arizona Rules of Probate Procedure
Contact Us for Arizona Will and Estate Issues
If you have a will contest or any questions regarding the validity of a will or trust, or have another dispute involving a trust or estate, contact us today.
We are here to help. We know and specialize in probate litigation. Our experienced lawyers vigorously represent clients in all types of contested will and probate law matters in Scottsdale and Arizona.
